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Note: The information on this and all pages of the Texas Process Watch website is not intended
to be legal advice, including all sub-domain pages. Only an attorney can answer legal questions
and sometimes those answers vary. It is recommended that all process servers consult with their
clients on issues of law and procedure.
PROPER WORDING FOR AFFIDAVITS:
Proper wording on your affidavits is essential or your services (and your clients'
default judgments) can be overturned. All affidavits must state that the affiant has
personal knowledge of the facts contained therein and that the facts are true and
correct. Affidavits in support of motions for substituted service (Texas process) must
also contain a statement that the address is the defendant's usual place of abode,
usual place of business and/or a place where the defendant can probably be found
(This wording must be exact as found in the Texas Rules of Civil Procedure, Rules
106 & 536.) Additionally, these rules state that the affidavit must show that service
has been attempted in person and/or by certified/registered mail. The text of Rules
106 & 536(for JP Courts) can be found [HERE.]
Remember to state that the affiant is over eighteen years of age and not a party to or
interested in the outcome of the case. Identify the defendant and the defendant's
address. Also, you must state information that proves, or at least suggests, the
address is valid, i.e., mail is delivered to defendant, utilities are in defendant's name,
defendant's car was parked out front, property is owned by defendant, or a relative, co-
worker or neighbor confirmed the address, etc. Don't rely on just one piece of
evidence. Two or more will make your affidavit rock solid.
Note: When service is attempted via U.S.P.S. certified mail, it is virtually impossible to
know if the address is the usual place of abode or usual place of business. (This can
also be true when attempting service in person.) In these cases, it is best to use the
third alternative, "a place where the defendant can probably be found."
You should not use white out or correction tape on affidavits and officer's returns. If a
mistake is made, simply draw one line through the mistake and hand write in the
correction. Then the affiant should initial near the correction. It's best just to retype
and re-execute the affidavit especially if the notary has already signed.
Online access to all Texas Rules of Civil Procedure
PROPER WORDING FOR RETURNS OF SERVICE
AND SAMPLE FORM (TEXAS PROCESS) [Click Here]
When serving a Summons and Complaint (Federal process), your return must be in
the form of, or accompanied by, an affidavit pursuant to Rule 4 of the Federal Rules of
Civil Procedure. The affidavit must contain the "personal knowledge" and "true and
correct" wording as stated above. All affidavits must also state the State and County
where they were executed as in, the State of Texas, County of Travis. (The attached
form does not have a line for the County which you can easily add.) You can find all
the different forms of oaths on your Texas notary commission.
New Case Law, July 2009- See Third Court of Appeals overturns service.
Note: One should never correct a clerk's typo on a court issued document. The
safest route is to contact the clerk about the mistake and have it corrected, especially
with regard to the defendant/witness name. It is important that the original and service
copy of the process matches the file copy the clerk places in the court jacket (or
computer). A typo on the service address, however, can be ignored as you can serve
Texas and Federal process wherever you may find the defendant/witness. No
correction to the face of the process should ever be made by anyone other than the
person who issues it. And, as always, any handwritten correction should be initialed.
PROCESS SERVER SUES ATTORNEY FOR NON-PAYMENT. JUDGE RULES
SERVER MUST SEEK RESTITUTION FROM ATTORNEY'S CLIENT.
(STORY TO BE POSTED SOON)
PROCESS SERVER GRILLED FOR HOURS FOR ALLEGEDLY FAILING TO CROSS
OUT THE WORD DEPUTY ON RETURN.
(STORY TO BE POSTED SOON)
TRESPASSING ISSUES
Service of process through the Texas Secretary
of State:
(now codified by the Texas Business Organizations Code, see below)
A little-known procedure regarding service of process made upon the Secretary of
State has surfaced. To insure all process servers are immediately apprised of this
information, we provide the following:
Texas Business Corporation Act, Art. 2.11(B) begins:
“Whenever a corporation shall fail to appoint or maintain a registered agent in this
State, or whenever its registered agent cannot with reasonable diligence be found at
the registered office, then the Secretary of State shall be an agent of such corporation
upon which any such process, notice, or demand may be served.”
The part that has been overlooked is the last sentence of this article, which states:
“Any service so had on the Secretary of State shall be returnable in not less than thirty
(30) days.”
What this means is that the officer’s return may not be filed with the issuing court until
the expiration of thirty (30) days. If the return is filed within thirty days of the date of
service, no default judgment may be taken. Note the following decision in Applied
Health Care Nursing Div., Inc. v. Laboratory Corp. of America; 138 S.W. 3d 627.
“Article 2.11(B) specifically states that ‘(a)ny service so had on the Secretary of State
shall be returnable in not less than thirty (30) days." Under this unambiguous
language of the statute, any return of service made before the expiration of thirty days
would not be in compliance with rules governing service on a corporation through the
Secretary of State. The return of service is not a trivial or formulaic document. See
Primate Constr., 884 S.W.2d at 152. It is the filing of the return providing service that
allows a default judgment to be taken.
“In this case, the record shows LabCorp served the Secretary of State on February
18, 2003. The return of service was filed in the trial court on March 7, 2003. Because
LabCorp filed the return of service less than thirty days after serving the Secretary of
State, it did not strictly comply with the requirements of article 2.11, and the default
judgment must fail.”
Process servers take note. Do not file your officer’s returns on papers served upon
corporations (and other filing entities, i.e. LP's, LLP's, LLC's, etc.) through the
Secretary of State until AFTER thirty days from the date of service.
Information on the Texas Business Organizations Code:
The Texas Business Organizations Code (BOC) will replace the Texas Corporations
Act on January 1, 2010 for most filing entities. The BOC codifies the following statutes:
* Texas Business Corporation Act
* Texas Non-Profit Corporation Act
* Texas Professional Corporation Act
* Texas Professional Association Act
* Texas Miscellaneous Corporation Laws Act
* Texas Revised Partnership Act
* Texas Revised Limited Partnership Act
* Texas Limited Liability Company Act
* Texas Real Estate Investment Trust Act
* Texas Cooperative Association Act
* Texas Uniform Unincorporated Nonprofit Association Act
The BOC was enacted in 2003 to be effective on January 1, 2006. The BOC applies
to all new Texas corporations, partnerships, limited liability companies and other
domestic filing entities formed on and after that date. In addition, it applies to all foreign
filing entities registering to transact business in Texas on or after that date. With the
exception of the filing fee provisions, the BOC does not immediately and automatically
apply to domestic entities that were created prior to January 1, 2006, or foreign
entities that registered to transact business in this state prior to January 1st. Existing
domestic and foreign entities will automatically become subject to the BOC on January
1, 2010, unless those entities elect early adoption of the BOC by filing an early
adoption statement with the secretary of state.
For our purposes as process servers, the BOC makes the same requirement.
The Texas Business Organizations Code, Chapter 5, Subchapter F
§ 5.251. FAILURE TO DESIGNATE REGISTERED AGENT. The secretary of state is
an agent of an entity for purposes of service of process, notice, or demand on the
entity if:
(1) the entity is a filing entity or a foreign filing entity and:
(A) the entity fails to appoint or does not maintain a registered agent
in this state; or
(B) the registered agent of the entity cannot with reasonable diligence
be found at the registered office of the entity; or
(2) the entity is a foreign filing entity and:
(A) the entity's registration to do business under this code is revoked;
or
(B) the entity transacts business in this state without being registered
as required by Chapter 9.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
§ 5.252. SERVICE ON SECRETARY OF STATE. (a) Service on the secretary of
state under Section 5.251 is effected by:
(1) delivering to the secretary duplicate copies of the process, notice, or
demand; and
(2) accompanying the copies with any fee required by law, including this
code or the Government Code, for:
(A) maintenance by the secretary of a record of the service; and
(B) forwarding by the secretary of the process, notice, or demand.
(b) Notice on the secretary of state under Subsection (a) is returnable in not less
than 30 days.
Acts 2003, 78th Leg., ch. 182, § 1, eff. Jan. 1, 2006.
More information can be found on the State's official website at:
http://www.sos.state.tx.us/corp/boc.shtml
IMPORTANT NOTE: WHETHER PURSUANT TO THE CORP. ACT OR THE
ORGANIZATIONS CODE, THIS APPLIES ONLY TO CORPORATIONS BEING
SERVED ON THE SECRETARY OF STATE (SOS) BECAUSE OF A FAILURE TO
MAINTAIN A REGISTERED AGENT OR BECAUSE THE REGISTERED AGENT
COULD NOT BE SERVED WITH REASONABLE DILIGENCE. IT DOES NOT APPLY
TO FOREIGN (OUT OF STATE) CORPORATIONS BEING SERVED ON THE SOS
PURSUANT TO LONG ARM STATUTES AND IT DOES NOT APPLY TO PROCESS
SERVED ON THE SOS AS AN ACTUAL DEFENDANT. (End)
Service on Military Personnel:
Visit our links page to find out if someone you served is in the military.
Rule 536, T.R.C.P. typo:
...has been attempted under "(a)1 or (a)2" should read "b(1) or b(2)"...
Texas Process Watch has been trying for years to get this corrected. You can help by
submitting your own comments on this or any matter to the Supreme Court by visiting
our Supreme Court page.
Rule 106/536 change needed:
Substituted service of process in Texas is a problem and actually causes service to be
delayed. Currently, one must make diligent attempts (normally 3 or more when
attempting personal service and as many as 6 in some courts) to personally serve a
defendant at a residence before obtaining a sub. service order. Federal Rule 4(e)(2)
states: "...service upon an individual...may be effected... by delivering a copy of the
summons and of the complaint to the individual personally or by leaving copies
thereof at the individual's dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein." An amendment to T.
R.C.P., Rules 106 and 536, would be beneficial in the following ways:
1. Service will be completed sooner if we could leave the process with a spouse,
relative or roommate thereby moving up the answer date and speeding up the case in
general.
2. Think of all the time and, more importantly these days, gasoline that could be
saved by not having to go back to the same address several times.
3. Time in uncontested docket would be greatly reduced.
This method works for service of federal process and service of process in many other
states. It would work for Texas and would benefit process servers, attorneys and
judges (even the constables). This method should be in addition to the current
method of sub. service. If you agree, please submit your comments any time to the
Supreme Court from our Supreme Court page.
Rule 108, clarification/change needed:
Rule 108, TRCP. How is an out-of-state process server supposed to have his/her
return notarized before a Texas notary? Rule 108 reads, in part,
"The return of service in such cases shall be endorsed on or attached to the original
notice, and shall be in the form provided in Rule 107, and be signed and sworn to by
the party making such service before some officer authorized by the laws of this State
to take affidavits, under the hand and official seal of such officer."
This rule needs to be clarified and/or amended.
ALL THE ABOVE CONCERNS ARE GOOD EXAMPLES OF THE TYPE OF
RECOMMENDATIONS THE PSRB SHOULD BE MAKING TO THE SUPREME
COURT.
Other:
Service by certified mail may be done by private process servers. See the 1993
Attorney General opinion.
OTHER HELPFUL INFORMATION
Other ALERTS