Note: The information on this and all pages of this site 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.
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.
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.
WHO TO SERVE:
Texas Business Organizations Code, Ch. 5.255
Sec. 5.255. AGENT FOR SERVICE OF PROCESS, NOTICE, OR DEMAND AS MATTER OF
LAW. For the purpose of service of process, notice, or demand:
(1) the president and each vice president of a domestic or foreign corporation is an agent
of that corporation;
(2) each general partner of a domestic or foreign limited partnership and each partner of a
domestic or foreign general partnership is an agent of that partnership;
(3) each manager of a manager-managed domestic or foreign limited liability company and
each member of a member-managed domestic or foreign limited liability company is an
agent of that limited liability company;
(4) each person who is a governing person of a domestic or foreign entity, other than an
entity listed in Subdivisions (1)-(3), is an agent of that entity; and
(5) each member of a committee of a nonprofit corporation authorized to perform the chief
executive function of the corporation is an agent of that corporation.
Acts 2003, 78th Leg., ch. 182, Sec. 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)
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