tpwSampleReturnForm

INFORMATION RELATING TO OFFICER’S RETURNS

Creating a return and attaching it to the original citation/writ is a common and
accepted practice in Texas. The generic fill-in-the-blank return can be used to report
service in just about any circumstance. It can be printed and used “as is” or the
format can be altered to remove the blanks and be saved as a template for all types of
returns. The important thing to remember is to follow the rules and the instructions of
your client. TRCP Rules 107 and 536(a) list what a return must include.

“RETURN”
It is recommended that you title your form “RETURN.” Avoid using the terms
“OFFICER’S RETURN” or “RETURN OF SERVICE.” Applying the cause number to
your form will prevent a misfiling should it become separated from the original process.

NAME AND METHOD OF SERVICE
Make sure your returns state the recipient’s name exactly and the method of service, i.
e. “by delivery in person,” or “by dropping the process at his feet after his refusal to
accept delivery,” etc. If the recipient indicates that the name on the process is
incorrect, reflect that information in your return. For example, if the name on the
process is John Smith and Mr. Smith tells you his name is spelled “Smyth” then your
return should read, “Executed by delivering in person to John Smith who told me his
name is spelled John Smyth.” This can be a common experience with women whose
name changed because of a marriage or divorce.

ADDRESS
Put the full address of where the service took place, including the county and zip
code. Be exact and don’t abbreviate. For instance, if you live in San Antonio, you
might be tempted to shorten the city name to “S.A.” The problem is… “S.A.” can also
stand for San Angelo and Santa Anna. Also, if you serve a person in the parking lot of
their apartment complex or at the corner of an intersection, reflect that on your return.

MILITARY
Asking the recipient if they are active military is NOT a requirement. However,
adopting this practice can really pay off for your clients. Regulating ourselves by
adopting this practice creates a positive reflection on the entire industry. For more on
this subject, please read, “Why You Should Ask.”

DATE OF DELIVERY
Please note that the return indicates that you delivered, “a true copy of the above
specified civil process having first endorsed on such copy the date of delivery.” It is a
requirement that the date of delivery be written on the service copy of the citation/writ
when you deliver it. If, for any reason, you do not write the date of delivery on the
process (i.e., you forgot, there was no time before the door slammed shut, etc.) YOU
CAN NOT SWEAR TO THIS FACT! You must cross out this wording or delete from
your computer version or write in exactly what happened.

VERIFICATION
Make sure your verification follows the example of the Texas Secretary of State. This
wording can be found in the Educational Materials of your Notary Commission. In
addition to the suggested forms, a Third Court of Appeals decision indicates that the
wording should include a statement that the facts are within the affiant’s “personal
knowledge.” Our sample below includes this wording. Lastly, it should be a common
sense understanding that the person who actually serves the process is the only
person who can sign the return. The affiant (server) must sign in the presence of the
Notary Public each and every time and this requirement cannot be conveyed to
another by any means, including via power of attorney.

OTHER T.R.C.P. RULES THAT RELATE TO SERVICE OF PROCESS:

RULE 121. ANSWER IS APPEARANCE
An answer shall constitute an appearance of the defendant so as to dispense with the
necessity for the issuance or service of citation upon him.

RULE 122. CONSTRUCTIVE APPEARANCE
If the citation or service thereof is quashed on motion of the defendant, such
defendant shall be deemed to have entered his appearance at ten o'clock a.m. on the
Monday next after the Expiration of twenty (20) days after the day on which the
citation or service is quashed, and such defendant shall be deemed to have been duly
served so as to require him to appear and answer at that time, and if he fails to do so,
judgment by default may be rendered against him.

Rule 121 makes clear that once a party files an answer, issues of service become
moot. Rule 122 provides that even if a service is overturned (before default) that the
filing of such a challenge is in itself deemed an appearance.

RULE 118. AMENDMENT [OF RETURN OF SERVICE]
At any time in its discretion and upon such notice and on such terms as it deems just,
the court may allow any process or proof of service thereof to be amended, unless it
clearly appears that material prejudice would result to the substantial rights of the
party against whom the process issued.

Rule 118 allows a return of service (a/k/a proof of service) to be amended. You must
coordinate this action with your client.

SUMMARY
A return of service is just as important as the physical act of delivering the process.
Serving process and making a return work collectively to provide the party with notice
and the court with proof of that notice was given. The court relies on the information
in your return to proceed. A return should be correct, truthful and informative so that it
leaves no questions or doubts about proper service.

SAMPLE RETURN

IMPORTANT: PROCESS SERVERS CERTIFIED BY THE TEXAS SUPREME COURT MUST
PUT THEIR CERTIFICATION NUMBER ON THE RETURN.

NOTE:
The information contained in the sample return and all pages of this website is not
intended as legal advice. Private process servers are accountable to the attorneys who
hire them. The attorney client is your source for legal advice. All returns, affidavits and
other forms should be approved by each particular attorney client before filing.