SUPPLEMENTAL REPORT-
COURT CLARIFIES NEW RULES:
[Posted Jan. 16, 2012; Amended Jan. 19, 2012]
On December 12, 2011, pursuant to the passage of House Bill 962, the Texas Supreme
Court amended the Texas Rules of Civil Procedure.
The Court's amendments to Rules 107 and 536(a) indicate returns may be made either by
verification (notary) or under penalty of perjury. However, House Bill 962 amends the
Civil Practice and Remedies Code by adding Section 17.030 and requires the Court to
adopt several amendments, one of which requires certified and out-of-state servers to
sign under penalty of perjury. The relevant part of the new law reads:
[As required by the passing of HB962] CPRC, Sec. 17.030... (c) A person certified by
the supreme court as a process server or a person authorized outside of Texas to serve
process shall sign the return of service under penalty of perjury. The return of service is
not required to be verified. [emphasis added]
The new law appears to indicate signing under perjury is not optional. When asked
about the discrepancy, the Court further clarified their new rules with the following
statement:
"Under Section 37 .02(a) of the Texas Penal Code, a person commits perjury if 'he makes
a false statement under oath' or 'makes a false unsworn declaration under Chapter 132,
Civil Practice & Remedies Code.' An affidavit made before a notary is a statement under
oath."
The Court has interpreted the requirement to sign under perjury in HB962 a/k/a CPRC
17.030(c) as a theoretical or indirect requirement, not a literal one. That being the case,
it comes down to this...
According to the Texas Supreme Court, certified and
out-of-state servers may complete returns in one of two ways:
If you want to prepare your return without having to notarize it, you must sign under
perjury using the format contained in the Court's Amended Rules (with date of birth,
address, etc. This is defined as an "unsworn declaration" outlined by the newly amended
Sec. 132.001, CRPC.) All returns by certified servers must contain the SCH# and Exp.
Date (in addition to items required in the Court's Amended Rules.)
If you don't want to make your date of birth public, you may continue to have your returns
verified (notarized.) You must include your SCH# and Exp. Date (in addition to items
required in the Court's Amended Rules.)
Please also read the Final Report on the 82nd Texas Legislature.
NOTE: Because of the disparity described above, some process servers who are
unwilling to put their date of birth on returns are choosing to continue to have their returns
verified (notarized) in addition to adding the following sentence, "I declare under penalty
of perjury that the foregoing is true and correct." or some variation of that declaration
(may also be referred to as a perjury jurat.) If the Court's clarification is ever determined
to be incorrect, it is theorized that the adding of this sentence would bring a return into
compliance with both the rule and the law. According to the Court's clarification, whether
a return is completed by verification or by perjury jurat, both are considered signed under
penalty of perjury.
By far the most important instruction for all process servers is to communicate with each
attorney client. It cannot be overemphasized that all questions and concerns about laws,
rules and procedures be posed to a person who is licensed to answer those questions.
This is most often the attorney client. If the client is not an attorney, i.e. a pro-se party or
another process server, the same standard applies; the pro-se party should seek legal
counsel and the forwarding process server is responsible for communicating with their
client. It is advisable that all returns be reviewed by the ordering attorney before being
filed with the court.
The new laws and rule changes apply to citations and other notices issued by the District,
County and Justice civil courts of Texas. The following are not directly affected:
Civil and criminal subpoenas
Summons and subpoenas issuing from the U.S. District Courts (federal)
Process issuing from other states or countries for service in Texas
The information in this report is not intended as legal advice. All legal questions,
including how to properly complete a return in Texas, must be answered by a person
licensed or otherwise authorized to give legal advice.
Provided By:
The Civil Process Servers Association of Texas
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