The citation notifies the defendant that he has been sued. The return is the report of service on the defendant. See Tex. R. Civ. P. 99, 107. The clerk must retain a copy of the citation in the court’s file. Tex. R. Civ. P. 99(a). The return may, but need not, be endorsed on or attached to the citation. Tex. R. Civ. P. 107(a).
Before submitting a default judgment, verify that the citation and the return are both file-stamped with the date of filing. The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition. Tex. R. Civ. P. 99(a). The citation informs the defendant of the suit and advises when, where, and how to answer. The purpose of citation is to give the court jurisdiction over the parties and to provide notice to the defendant that it has been sued, by a particular party asserting a particular claim, so that due process will be served and that the defendant will have an opportunity to appear and defend the action.
Strict compliance with the rules for service of citation is required. “There are no presumptions in favor of valid issuance, service, and return of citation . . . ” Primate Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W. 2d 884, 885 (Tex. 1985); McKanna v. Edgar, 388 S.W.2d 927, 929–30 (Tex. 1965)); Wilson v. Dunn, 800 S.W.2d 833, 836–37 (Tex. 1990); Master Capital Solutions Corp. v. Araujo, 456 S.W.3d 636, 639 (Tex. App.—El Paso 2015, no pet.). A one-day error in the citation’s stated date of filing of petition resulted in reversal of default judgment in Montgomery v. Hitchcock, No. 03-1400643-CV, 2016 WL 3068219, at *2–3 (Tex. App.—Austin May 25, 2016, no pet.). “We have long held that a no-answer default judgment cannot stand when the defendant ‘was not served in strict compliance with applicable requirements.’” Spanton v. Bellah, 612 S.W.3d 314, 316 (Tex. 2020) (per curiam) (order for substituted service authorized service on Heathers Hill Drive; return reported service on Heather Hills Drive; default judgment set aside) (quoting Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990)).
On the filing of a petition, the clerk issues and delivers the citation as directed by the requesting party. If requested, separate or additional citations will also be issued by the clerk. Tex. R. Civ. P. 99(a). The issuance of a citation includes preparing, dating, attesting to, and delivering it to an officer or other appropriate person for service. See London v. Chandler, 406 S.W.2d 203, 204 (Tex. 1966).
The court, in its discretion, may allow citation or proof of service to be amended. See Tex. R. Civ. P. 118. Safer practice is to review the citation prior to service. If the citation has an error, an accurate citation can simply be issued. Tex. R. Civ. P. 99(a). As with all stages of service of process, precision is required. The citation generally cannot be issued or served on Sunday; see Tex. R. Civ. P. 6 for exceptions.
The citation should not mislead. In one case, the supreme court voided a default judgment when the citation stated that the sheriff or constable “shall deliver” citation to the defendant in person, but the defendant was instead served by certified mail. The court found the discrepancy could mislead the defendant into believing that subsequent personal service would occur. Smith v. Commercial Equipment Leasing Co., 678 S.W.2d 917, 917–18 (Tex. 1984).
Style: The citation must be styled “The State of Texas.” Tex. R. Civ. P. 15, 99(b)(1).
Signature and Seal: The citation must be signed by the clerk under seal of the court. Tex. R. Civ. P. 99(b)(2). Midstate Environmental Services, LP v. Peterson, 435 S.W.3d 287, 290 (Tex. App.—Waco 2014, no pet.) (lack of seal was “glaring defect”; also, citation was not directed to defendant). But see Consolidated American Industries, Inc. v. Greit-Amberoaks, L.P., No. 03-07-00173-CV, 2008 WL 5210925, at *2 (Tex. App.—Austin Dec. 12, 2008, no pet.) (mem. op.) (seal requirement met when citation is signed by deputy of district court as “issued and given under my hand and seal of said court”). Note that per Tex. R. App. P. 34.5(f), “on any party’s motion or its own initiative, the appellate court may direct the trial court clerk to send it any original document.”
Location of Court: The citation must contain the court’s name and location. Tex. R. Civ. P. 99(b)(3). Faaborg v. Allcorn, No. 11-05-00365-CV, 2006 WL 3238241, at *2 (Tex. App.—Eastland Nov. 9, 2006, no pet.) (mem. op.) (“County Court at Law #2, Williamson County, Texas” properly stated the name and location of court—though address not stated). See also Tex. R. Civ. P. 99(11), requiring court clerk’s address.
Date of Filing Petition: The citation must state the date of filing of the petition. Tex. R. Civ. P. 99(b)(4); Montgomery v. Hitchcock, No. 03-1400643-CV, 2016 WL 3068219, at *2–3 (Tex. App.—Austin May 25, 2016, no pet.) (one-day error was fatal defect); In re J.T.O., No. 04-07-00241-CV, 2008 WL 139295, at *1 (Tex. App.—San Antonio Jan. 16, 2008, no pet.) (mem. op.) (wrong date was fatal error) (citing Mansell v. Insurance Co. of the West, 203 S.W.3d 499, 501 (Tex. App.—Houston 2006, no pet.); Hance v. Cogswell, 307 S.W.2d 277, 278, 280 (Tex. App.—Austin 1957, no writ) (incomplete filing date); Garza v. Garza, 223 S.W.2d 964 (Tex. App.—San Antonio 1949, no writ) (incomplete filing date)).
Date of Issuance: The citation must state the date of issuance of citation. Tex. R. Civ. P. 99(b)(5). The failure to do so, however, will not affect the validity of the default judgment unless harm is demonstrated. Higginbotham v. General Life & Accident Insurance Co., 796 S.W.2d 695, 697 (Tex. 1990) (citing London v. Chandler, 406 S.W.2d 203 (Tex. 1966)). The suit must be on file when the citation is issued. McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 417 (Tex. App.—Houston [1st Dist.] 1992, writ denied) (citing Moorehead v. Transportation Bank, 62 S.W.2d 184, 185 (Tex. App.—Amarillo 1933, no writ)).
File Number: The citation must show the file number. Tex. R. Civ. P. 99(b)(6); In re S.B.S., 282 S.W.3d 711, 714 (Tex. App.—Amarillo 2009, pet. denied) (citing Durham v. Betterton, 14 S.W. 1060, 1060–61 (1891); Martinez v. Wilber, 810 S.W.2d 461, 463 (Tex. App.—San Antonio 1991, writ denied) (erroneous file number is fatal error).
Names of Parties: The citation must show the names of the parties. Tex. R. Civ. P. 99(b)(7). See Union Pacific Corp. v. Legg, 49 S.W.3d 72, 77–79 (Tex. App.—Austin 2001, no pet.) ($50 million judgment reversed because citation named Union Pacific Railroad Company, when Union Pacific Corporation was the named defendant); Mantis v. Resz, 5 S.W.3d 388, 390–91 (Tex. App.—Fort Worth 1999, pet. denied) overruled in part on other grounds by Sheldon v. Emergency Medicine Consultants, I, P.A., 43 S.W.3d 701, 702 n.2 (Tex. App.—Fort Worth 2001, no pet.) (petition and citation naming defendant Michael Mantis sufficient, though defendant’s name was Michael Mantas).
Directed to Defendant: The citation must be directed to the defendant, Tex. R. Civ. P. 99(b)(8). A citation directed to defendant and the sheriff or constable is sufficient. Barker CATV Construction, Inc. v. Ampro, Inc., 989 S.W.2d 789, 792–93 (Tex. App.—Houston [1st Dist.] 1999, no pet.). While the citation may, and in some cases must, be served on an agent, it is invalid if it is directed to the agent rather than the principal. See ISO Production Management 1982, Ltd. v. M&L Oil & Gas Exploration, Inc., 768 S.W.2d 354, 356 (Tex. App.—Waco 1989, no writ) (defendant was a limited partnership; citation directed to president of corporate general partner was not valid; default judgment reversed) (citing Stafford Construction Co., Inc. v. Martin, 513 S.W.2d 667, 668–70 (Tex. App.—El Paso 1975, no writ)).
Name and Address of Plaintiff’s Attorney: The citation must include the name and address of the plaintiff’s attorney; otherwise the plaintiff’s address should be included. Tex. R. Civ. P. 99(b)(9).
Time in Which to Answer: The citation must state the time in which the Texas Rules of Civil Procedure require defendant to file a written answer. Tex. R. Civ. P. 99(b)(10). “The citation shall direct the defendant to file a written answer to the plaintiff’s petition on or before 10:00 a.m. on the Monday next after the expiration of twenty days [fourteen days in justice court; see Tex. R. Civ. P. 502.5(d)] after the date of service thereof. The requirement of subsections 10, 12, and 13 of this section shall be in the form set forth in section c of this rule.” Tex. R. Civ. P. 99(b)(13). See also Tex. R. Civ. P. 99(c).
Court Clerk’s Address: The citation must contain the address of the clerk. Tex. R. Civ. P. 99(b)(11).
Default Judgment Warning: The citation “shall notify the defendant that in case of failure of defendant to file an answer, judgment by default may be rendered for the relief demanded in the petition. Tex. R. Civ. P. 99(b)(12).
Notification as to Initial Disclosures: The citation shall notify the defendant that the defendant may be required to make initial disclosures. Tex. R. Civ. P. 99(b)(13).
Required Notice Pursuant to Tex. R. Civ. P. 99(c): The citation shall include the following notice to defendant: “You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you.” Tex. R. Civ. P. 99(c). See Tex. R. Civ. P. 501.1(c) for notice in justice courts. See also chapter 30 in this manual.
Petition Copies: The plaintiff must provide sufficient copies for use in serving parties to be served. Tex. R. Civ. P. 99(d).
Plaintiff May Prepare: The plaintiff or plaintiff’s attorney may prepare the citation. See Tex. Civ. Prac. Rem. Code § 17.027(a). The citation should be presented to the clerk for signing and affixing a seal to same. Tex. R. Civ. P. 99(b)(2).
Statement of Inability to Afford Payment of Court Costs (Formerly Pauper’s Oath): If service of process is requested in a county other than in the county of suit, the clerk must indicate on the citation if a statement of inability to afford payment of court costs has been filed. If a statement has been filed, the sheriff or constable must execute the service without demanding payment. Tex. R. Civ. P. 126.
There are three kinds of service:
1.Personal Service—This is delivery of the citation and petition to the defendant in person or to an authorized representative of a corporate defendant or other entity; see section 16.3 below.
2.Substituted or Alternate Service—This is service on someone other than the named defendant or service by leaving the citation and petition at a location where the defendant can probably be found or in any other manner, including electronically by social media, email, or other technology, that the evidence shows will be reasonably effective to give the defendant notice of suit. See section 16.7 below.
3.Constructive Service—This is citation by publication or service by publication. Because it is constructive, not actual service, it is not a favored method of service. It is discussed at section 16.16. When a defendant’s identity is known, service by publication is generally inadequate. In re E.R., 385 S.W.3d 552, 560 (Tex. 2012).
Some form of service must be accomplished. Even if the defendant has actual notice of the suit, lack of proper service may void a default judgment. Wilson v. Dunn, 800 S.W.2d 833, 836–37 (Tex. 1990); Deanne v. Deanne, 689 S.W.2d 262, 263 (Tex. App.—Waco 1985, no writ). The plaintiff must exercise extreme diligence in the issuance and service of citation if the lawsuit was filed close to the deadline for the applicable statute of limitations. The mere filing of a suit, without diligence in effecting service, will not toll limitations. Ashley v. Hawkins, 293 S.W.3d 175, 179 (Tex. 2009); Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990); Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam). “To ‘bring suit’ within the two-year limitations period prescribed by section 16.003, a plaintiff must not only file suit within the applicable limitations period, but must also use diligence to have the defendant served with process. Rigo Mfg. Co. v. Thomas, 458 S.W.2d 180, 182 (Tex.1970). When a plaintiff files a petition within the limitations period, but does not serve the defendant until after the statutory period has expired, the date of service relates back to the date of filing if the plaintiff exercised diligence in effecting service.” Gant, 786 S.W.2d at 260. Diligence is rarely proven in lawsuits filed near limitations. See Budget Rent a Car System, LLC v. Valadez, 558 S.W.3d 304 (Tex. App.—Houston [14th Dist.] 2018, no pet.) (service five days after limitations, but thirty-two days after citation ready; take-nothing judgment for defendant affirmed).
Practice Note: Practice as if service must be obtained before the limitations date. Treat exceptions as a priority. Efforts to obtain service after limitations date will be strictly graded for diligence.
As to who may serve process, see Tex. R. Civ. P. 103. A defendant should be served in person whenever possible. This is the preferred method of service. Alternate forms of service are not usually permitted unless personal service is impractical. Personal service may be made by any person authorized to serve citation and other notices under Tex. R. Civ. P. 103 by—
1.delivering to the defendant, in person, a copy of the citation, showing the delivery date and of the petition, or
2.mailing to the defendant by registered or certified mail, return receipt requested, a copy of the citation and of the petition.
Tex. R. Civ. P. 106(a). No one who is a party or who is interested in the outcome of the suit may serve process in that suit. Tex. R. Civ. P. 103. A nonresident or a resident defendant who is temporarily out of the state can be served in the sister state by “any disinterested person who is not less than eighteen years of age, in the same manner as provided in Rule 106.” Tex. R. Civ. P. 108. A party in a foreign country may be served according to the provisions of Tex. R. Civ. P. 108a. Service on a business entity is discussed beginning at section 16.11 below.
The manner of service must strictly comply with the Texas Rules of Civil Procedure. Smith v. Commercial Equipment Leasing Co., 678 S.W.2d 917, 918 (Tex. 1984) (actual manner of service—certified mail—conflicted with terms of citation, which specified personal service only).
§ 16.4Service by Private Process Server
The party requesting citation is responsible for obtaining service of citation and petition. Tex. R. Civ. P. 99(a). The attorney should consider selecting an experienced certified process server to aid in obtaining proper service. A creditor’s rights attorney can benefit from regularly using a capable, professional process server.
Generally, it is not necessary to rely on a constable or sheriff to serve citation. A process server may be authorized by court order to serve citation. The court may order service by any person eighteen years old or older, as long as that person is neither a party nor interested in the outcome of the litigation. See Tex. R. Civ. P. 103. The Texas Supreme Court appoints the commissioners of the Judicial Branch Certification Commission (JBCC), which oversees certification and licensing of Texas process servers, guardians, court reporters, and court interpreters. A list of over 3,000 certified process servers and a process server complaint form can be found at the Process Server Certification link at www.txcourts.gov/jbcc/process-server-certification/. The telephone number for the JBCC is (512) 475-4368.
A process server certified by the Judicial Branch Certification Commission must include his or her identification number and the expiration date of his certification in his or her return of service. Tex. R. Civ. P. 107(b)(10). See also Tex. Civ. Prac. Rem. Code § 17.030(b)(2)(J). The return must be signed by the authorized person serving or attempting to serve the citation, and, if that person is not a sheriff, constable, or clerk of the court, the return must either be verified or signed under penalty of perjury. Tex. R. Civ. P. 107(e). See Tex. R. Civ. P. 107(e) for the statement that must be included in a return signed under penalty of perjury.
§ 16.5Service by Officer or Process Server
Pursuant to Tex. R. Civ. P. 103, most process can be served by a private process server. See section 16.4 above. But some documents must be served by an officer: “[O]nly a sheriff or constable may serve a citation in an action of forcible entry and detainer, a writ that requires the actual taking of possession of a person, property or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process.” Tex. R. Civ. P. 103.
Often, a private process server can effect service more quickly than a constable or sheriff. Officers are often busy handling criminal matters and other emergencies. The plaintiff’s attorney may request that the clerk send documents to be served directly to the private process server, constable, sheriff, or back to the attorney. Having the citation sent to the attorney is recommended because the attorney or his staff can check the documents for accuracy before forwarding them for service. This method provides an opportunity for the attorney to ask the person serving process to send a draft of the proposed return to the attorney. This allows the attorney to verify, before filing, that the return is precise, as it must be. If additional instructions are needed, they can be provided. This procedure provides a more personal contact between the attorney and the person serving process.
For service of writs of garnishment, see Tex. R. Civ. P. 663 (“The sheriff or constable . . . shall immediately [serve garnishee]”). Sheriffs and constables are not restricted to service in their own counties. Citation and other notices “may be served anywhere by (1) any sheriff or constable or other person authorized by law or, (2) by any person authorized by law or by written order of the court who is not less than eighteen years of age.” Tex. R. Civ. P. 103. Tex. Loc. Gov’t Code § 86.021(d) provides that a constable may execute process anywhere in the county in which his precinct is located or in a contiguous county, “[r]egardless of the Texas Rules of Civil Procedure,” but the constable may not retain a fee for serving civil process. There is no statute governing where a sheriff may serve process. The Local Government Code provides that the sheriff “shall execute all process and precepts directed to the sheriff by legal authority.” Tex. Loc. Gov’t Code § 85.021(a).
Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. Tex. R. Civ. P. 103. Service by publication in a newspaper must be done by any sheriff or constable or by the court clerk. See Tex. R. Civ. P. 116(c). Service by publication on the Public Information Internet website must be done by the court clerk. See Tex. R. Civ. P. 116(d).
§ 16.6Procedure for Service and Return
Substituted service on individuals is discussed at section 16.7 below. For service on business entities through the secretary of state, see section 16.11:2.
§ 16.6:1Involvement of Attorney and Staff
The procedure recommended in this manual calls for the creditor’s attorney to be more involved in service of process than is customary in most other kinds of litigation. The attorney is responsible for proper service. See Tex. R. Civ. P. 99(a). This additional work is warranted because it helps ensure that service is accomplished correctly.
A precise return is required. Insurance Co. of Pennsylvania v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009) (mem. op.) (clerk failed to state hour of receipt on return as required by Tex. R. Civ. P. 16 and 105; reversed and remanded). Strict compliance with applicable statutory provisions and the court’s orders regarding issuance and service of citation is required to support a default judgment. Almost any deviation will be sufficient to set aside a default judgment. See U.S. Bank N.A. as Trustee for SROF-2013-M4 Remic Trust I v. TFHSP LLC Series 6481, 487 S.W.3d 715, 718 (Tex. App.—Fort Worth 2016, no pet.) (citing McKanna v. Edgar, 388 S.W.2d 927, 929–30 (Tex. 1965)). Failure to strike through inapplicable form language may invalidate service. See Primate Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (form language recited that defendant was served with original, instead of amended petition; fatal defect).
It is recommended that in every case, the attorney request the clerk to send the citation to the attorney’s office. This allows the attorney to review the citation and confirm that the citation satisfies all the requirements of Tex. R. Civ. P. 99. If the citation is not precise, the attorney should point out the error to the clerk and request a new citation. The clerk is to provide additional citations on request. Tex. R. Civ. P. 99(a). Amending a citation or return based on Tex. R. Civ. P. 118 is not recommended, as the rule is vague.
When service has been accomplished, the answer day should be calculated (see section 16.17 below) and calendared. The attorney should ask the person serving process to send a draft return to the attorney before filing the return. The attorney should confirm that the return is precise, including that the correct party was served, that the capacity of the party served is shown if appropriate, and so forth. See section 16.8. The attorney should scrutinize the service documents if substituted service or service on an agent was used. The return must precisely comply with Tex. R. Civ. P. 107. The officer or authorized person executing the citation must complete a return of service. Tex. R. Civ. P. 107(a). The return may, but is not required, to be electronically filed. See Tex. R. Civ. P. 107(g). Attorney review of the return, prior to filing, reduces likelihood or error. Once the return is approved and filed, a date-stamped copy of the return should be emailed or delivered to the plaintiff’s attorney. Especially with e-filing, confirm that the return itself is stamped with date of filing. The record must establish that the return was on file ten days, excluding date of filing and date of judgment, before a default judgment can be granted. See Tex. R. Civ. P. 107(h).
If the server is unable to serve the citation, the attorney may request that the server file it with the court. Additional citations shall be issued by the clerk on request. Tex. R. Civ. P. 99(a). See section 16.6:4.
§ 16.6:4Alias or Pluries Citation
Citations do not expire under Texas law. Officers, however, will typically return an unserved citation to the clerk or plaintiff’s attorney after several unsuccessful service attempts have been made. Unless the first citation is defective, it should still be valid for service.
If the original citation has been returned unserved to the clerk, the plaintiff’s attorney may request that a new citation be issued pursuant to Tex. R. Civ. P. 99(a). The first new citation issued may be denoted an “alias” citation; the second, a “pluries” citation; a subsequent citation, a “second pluries citation” and so forth. Issuance of an alias or other subsequent citation requires payment of an additional fee.
Tex. R. Civ. P. 106(b) does not require a new citation be issued when substituted service is sought.
§ 16.6:5Service by Certified or Registered Mail
Service of citation may be made by registered or certified mail, return receipt requested. The court clerk mails the citation, with a copy of the petition attached. Tex. R. Civ. P. 103, 106. The primary problem with service of citation by certified or registered mail is that there is no way to compel the defendant to legibly sign for the letter. The defendant may refuse delivery or sign illegibly. It is best to send certified mail, restricted to the addressee only, though the signature problems persist. Restricted delivery is required in justice court. Tex. R. Civ. P. 501.2(b)(2).
The signature on the return receipt (green card) must be that of the defendant or his authorized agent for service, unless a Tex. R. Civ. P. 106(b) order authorizes substituted service by mail. See section 16.6:6; American Universal Insurance Co. v. D.B.&B., Inc., 725 S.W.2d 764, 765, 767 (Tex. App.—Corpus Christi–Edinburg 1987, writ ref’d n.r.e.) (person who signed was not authorized agent); Pharmakinetics Laboratories, Inc. v. Katz, 717 S.W.2d 704, 706 (Tex. App.—San Antonio 1986, no writ) (return receipt insufficient when addressed to defendant’s agent but signed by unidentified person). The return of service by mail must meet all the requirements governing the return of personal service and must contain the return receipt with the addressee’s signature. Tex. R. Civ. P. 107(c); see Metcalf v. Taylor, 708 S.W.2d 57, 58–59 (Tex. App.—Fort Worth 1986, no writ) (return failed to show either when citation was served or manner of service and was not signed by officer); Melendez v. John R. Schatzman, Inc., 685 S.W.2d 137, 138 (Tex. App.—El Paso 1985, no writ). The return need not state the actual date of delivery, however, if the postmark on the return receipt is clear. Nelson v. Remmert, 726 S.W.2d 171, 172 (Tex. App.—Houston [14th Dist.] 1987, writ ref’d n.r.e.).
§ 16.6:6Substituted Service by Mail
Substituted service by mail was approved by the supreme court in State Farm Fire & Casualty Co. v. Costley, 868 S.W.2d 298, 299 (Tex. 1993) (per curiam). Costley illustrates that mail service is best made in conjunction with a motion, sworn statement, and substitute service order, pursuant to Tex. R. Civ. P. 106(b). With such an order, one may avoid the need for a mail receipt with addressee’s signature otherwise required by Tex. R. Civ. P. 107(c). See Singh v. Trinity Marketing & Distribution Co., 397 S.W.3d 257, 263–64 (Tex. App.—El Paso 2013, no pet.) (citing Costley, 868 S.W.2d at 299); Rowsey v. Matetich, No. 03-08-00727-CV (Tex. App.—Austin Aug. 12, 2010, no pet.) (mem. op.) (citing Costley, 868 S.W.2d at 299, and approving substituted service by mail without certified mail receipt). But see Titus v. Southern County Mutual Insurance, No. 03-05-00310-CV, 2009 WL 2196041, at * (Tex. App.—Austin July 24, 2009, no pet.) (mem. op.) (noting that the supreme court has made clear that there is a heavy burden to support substituted service by first-class mail). Therefore, the substituted service statement, sworn to before a notary or made under penalty of perjury, should specifically report the attempts at personal service and result of each attempt. If defendant evades service, the attorney should state the facts establishing same. Build a strong record to justify mail service, and comply with Tex. R. Civ. P. 106(b). See section 16.7 for discussion of substituted service.
§ 16.7Substituted Service on Individual
For information on substituted service by mail, see section 16.6:6 above. See forms 16-5, 16-6, and 16-7 in this chapter. For more about substituted service on business entities, see section 16.11:2.
If personal service cannot be effected, substituted service may be used. Tex. R. Civ. P. 106(b) states the following:
Upon motion supported by a statement—sworn to before a notary or made under penalty of perjury—listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)–(1) or (a)–(2) at the location named in the statement but has not been successful, the court may authorize service
1.by leaving a copy of the citation and of the petition with anyone older than sixteen at the location specified in the statement, or
2.in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.
Tex. R. Civ. P. 106(b). Substituted service requires a motion; a sworn, factual statement showing where the defendant can probably be found, with details of prior service attempts; and a court order authorizing substituted service. See form 16-4, Motion for Substituted Service.
Note: The amendment to rule 106 of the Texas Rules of Civil Procedure, effective January 1, 2021, replaced the requirement of an affidavit with that of a statement, sworn before a notary or made under penalty of perjury. See Tex. R. Civ. P. 106.
Rule 106 allows substituted service electronically by email, social media, or other technology. A comment to the 2020 rule change stated the following:
In determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology. If Plaintiff is moving for substituted service by email, or other technology, an additional sworn statement will be required to show that defendant regularly used, or recently used, the email or other technology. Plaintiff’s counsel should consider demand emails to debtor when receiving a new claim. Often, research will reveal more than one email address for a debtor. Multiple email addresses should be attempted. If debtor responds, using a specific email, this fact could later be used by Plaintiff’s counsel in a motion for substituted service by email.
Practice Note: When preparing a motion for substituted service, consider a motion and order that requires two service methods. It is more difficult for a defendant to explain why no answer was filed when served twice. See Qi v. An, No. 02-20-00330-CV, 2021 WL 5028607, at *1 (Tex. App.—Fort Worth Oct. 28, 2021, no pet.) (substituted service by email and posting to the front door; defendant argued that he did not check his email but did not defend posting to the front door).
§ 16.7:1Effect of Substituted Service
Substituted service can survive the “I did not receive it” plea. In Mixon v. Nelson, the court signed a substituted service order allowing service by posting to front door of residence. Because the return confirmed service was pursuant to order, it was sufficient to establish service. Defendant’s denial of receipt of the posted citation and petition is not evidence that process was not properly posted and raises no fact issue as to substituted service. Mixon v. Nelson, No. 03-15-00287-CV, 2016 WL 4429936, at *3 (Tex. App.—Austin, August 19, 2016, no pet.) (mem. op.) (citing State Farm Fire & Casualty Co. v. Costley, 868 S.W.2d 298, 298–99 (Tex. 1993) (per curiam)). Though not required by most orders, consider mailing additional copy of the documents to defendant by certified and first class mail. If a new trial motion is filed claiming nonreceipt, mailed copies may reassure the court that the plaintiff not only had defendant properly served per the court’s order, but made additional efforts to give defendant notice of the suit.
§ 16.7:2Statement Requirements
Note: The amendment to rule 106 of the Texas Rules of Civil Procedure, effective January 1, 2021, replaced the requirement of an affidavit with that of a statement, sworn before a notary or made under penalty of perjury. See Tex. R. Civ. P. 106.
Process servers and officers often have their own “rule 106” affidavits. Caution should be exercised in using their affidavits. The validity of a future default judgment probably depends on the diligence used in attempting personal service and the specificity and accuracy of the affidavit affirming diligence before substituted service is sought. See Medford v. Salter, 747 S.W.2d 519, 520 (Tex. App.—Corpus Christi–Edinburg 1988, no writ). Failure to secure the affidavit voids any attempt at substituted service and any judgment based on that service. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990).
If the affidavit is vague, it may be insufficient. See Hubicki v. Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per curiam) (affidavit failed to establish that alternative service at one of defendant’s two residence addresses was reasonably calculated to provide defendant with notice in time to answer and defend); Torres v. Haynes, 432 S.W.3d 370, 372 (Tex. App.—San Antonio 2014, no pet.) (absence of motion supported by affidavit compelled reversal). See form 16-5, Statement in Support of Motion for Substituted Service.
Tex. R. Civ. P. 106 does not require that both personal service and service by mail be attempted before substituted service is sought. Harrison v. Dallas Court Reporting College, Inc., 589 S.W.2d 813, 815 (Tex. App.—Dallas 1979, no writ). There is also no requirement that the service be attempted at both the defendant’s residential and business addresses. Pratt v. Moore, 746 S.W.2d 486, 488–89 (Tex. App.—Dallas 1988, no writ). A specific showing of what attempts were made to serve the defendant must appear in the affidavit, however, and failure to show the specific attempts will render the substituted service invalid. See Medford, 747 S.W.2d at 520. The affidavit should also state factually why the defendant can probably be found at a specific address.
§ 16.7:3Need for Strict Compliance with Order
The substituted service order must be followed strictly. Smith v. Commercial Equipment Leasing Co., 678 S.W.2d 917, 918 (Tex. 1984); Dolly v. Aethos Communications Systems, 10 S.W.3d 384, 388–89 (Tex. App.—Dallas 2000, no pet.); Vespa v. National Health Insurance Co., 98 S.W.3d 749, 752 (Tex. App.—Fort Worth 2003, no. pet.) (return failed to state that Tex. R. Civ. P. 106 order was posted at front door with citation and petition as required by order); Becker v. Russell, 765 S.W.2d 899, 901 (Tex. App.—Austin 1989, no writ) (same).
Service on the defendant’s agent, unless the agent is affirmatively shown to be the defendant’s agent for service of process, will not suffice. Encore Builders v. Wells, 636 S.W.2d 722, 723 (Tex. App.—Corpus Christi–Edinburg 1982, no writ). Service on the defendant’s attorney, without explicit authorization, does not constitute effective service. The court can give this explicit authorization under Tex. R. Civ. P. 106(b) if the court finds that this service will be reasonably effective to give the defendant notice of the suit. See Leach v. City National Bank of Laredo, 733 S.W.2d 578, 580 (Tex. App.—San Antonio 1987, no writ).
See forms 16-5, 16-6, and 16-7.
§ 16.8Return of Service; Tex. R. Civ. P. 107
Before the return is filed, the attorney should review a draft to verify that it meets the requirements of applicable law and will support a default judgment. The return must precisely comply with the many specific requirements of Tex. R. Civ. P. 107. See Tex. R. Civ. P. 107(a). A person who knowingly or intentionally falsifies a return of service may be prosecuted for tampering with a governmental record as provided by chapter 37 of the Texas Penal Code. Tex. Civ. Prac. & Rem. Code § 17.030(d).
The court may allow process or proof of service to be amended. See Tex. R. Civ. P. 118. The rule is vague; the better practice is to have a new citation issued and served, and proper return filed. The process must be endorsed with the hour and date the officer or other authorized person received it, the manner in which he executed it, and the time and place the process was served; it must be signed officially by the officer or authorized person. Process must be executed and returned “without delay.” Tex. R. Civ. P. 16, 105.
The requirements for a return include the following:
1.The officer or authorized person must complete a return of service that may, but need not, be endorsed on or attached to the citation. Tex. R. Civ. P. 107(a). The return of service may be electronically filed. Tex. Civ. Prac. & Rem. Code § 17.030(b)(1)(B).
2.The return, along with any documents to which it is attached, must include—
a.the cause number and case name;
b.the court in which the case is filed;
c.a description of what was served;
d.the date and time the process was received for service;
e.the person or entity served;
f.the address served;
g.the date of service or attempted service;
h.the manner of delivery of service or attempted service;
i.the name of the person who served or attempted to serve the process;
j.if the person who served or attempted to serve the process is a process server certified by the Judicial Branch Certification Commission, his identification number and the expiration date of his certification; and
k.any other information required by rule or law.
Tex. R. Civ. P. 107(b). See also Tex. Civ. Prac. & Rem. Code § 17.030(b)(2).
3.The return must include a description of what was served. Tex. R. Civ. P. 107(b)(3); In re J.B., No. 02-15-00040-CV, 2015 WL 9435961, at *3 (Tex. App.—Fort Worth Dec. 23, 2015, no pet.) (mem. op.).
4.If the defendant is a corporation or partnership, the return must show the name of the individual to whom the citation and petition were delivered and that person’s title or capacity. See Cox Marketing, Inc. v. Adams, 688 S.W.2d 215, 218 (Tex. App.—El Paso 1985, no writ). The title and capacity of recipient of process may be otherwise established in the court record.
5.If the citation was served by mail under rule 106, the return must contain the return receipt (green card), signed by the addressee. Tex. R. Civ. P. 107(c).
6.If the citation was not served, the return must show the diligence used by the officer or authorized person to execute the citation, the cause of failure to execute it, and where the defendant is to be found, if ascertainable. Tex. R. Civ. P. 107(d).
7.The citation must be signed by the officer or authorized person who serves or attempts to serve the citation. If signed by someone other than a sheriff, constable, or clerk of the court, the return must either be verified or signed under penalty of perjury. A return signed under penalty of perjury must include the statement prescribed in Tex. R. Civ. P. 107(e). See Tex. R. Civ. P. 107(e); Tex. Civ. Prac. & Rem. Code § 17.030(c).
8.If the citation was served by substituted service as provided in Tex. R. Civ. P. 106(b), the proof of service must be made in the manner ordered by the court. Tex. R. Civ. P. 107(f). The attorney should confirm that the manner of service required by Tex. R. Civ. P. 107(b)(8) precisely mirrors the order. See section 16.7:3.
9.The return and any document to which it is attached must be filed with the court and may be filed electronically or by facsimile, if available. Tex. R. Civ. P. 107(g). See also Tex. Civ. Prac. & Rem. Code § 17.030(b)(1)(B). It is important to verify that the return itself is file-stamped to establish that it was on file ten days before judgment. See Tex. R. Civ. P. 107(h). Absence of file-stamp on return itself may cause reversal of judgment. Midstate Environmental Services, LP v. Peterson, 435 S.W.3d 287, 290–91 (Tex. App.—Waco 2014, no pet.) (citation to which return was probably attached was file-stamped, but return was not, in violation of Tex. R. Civ. P. 107(h); judgment reversed).
10.If substituted service will be requested under Tex. R. Civ. P. 106(b), the process server’s sworn statement must specifically establish the facts showing service has been attempted by regular methods. See Tex. R. Civ. P. 106, 107. The sworn statement should report when and where each service attempt was made and the result of each attempt. See section 16.7:2.
11.If the citation was served on the secretary of state because the corporate defendant’s registered agent could not be found at the registered office (Tex. Bus. Orgs. Code § 5.251), the process server’s affidavit or the return for the unserved citation must specifically state, “the diligence used by the officer in executing the citation or the cause of his failure to execute it.” David A. Carl Enterprises, Inc. v. Crow-Shutt #14, 553 S.W.2d 118, 121 (Tex. App.—Houston [1st Dist.] 1977, no writ). See Tex. R. Civ. P. 107(d) and section 16.11:2 below. A showing of diligence requires specific factual statements describing how the person actually attempted to serve the defendant, not merely a general statement that reasonable diligence was used. See Medford v. Salter, 747 S.W.2d 519, 520 (Tex. App.—Corpus Christi–Edinburg 1988, no writ). An affidavit should include for each service attempt on whom service was attempted; the person’s office or title; and the when, where, and result of each attempt. See Paramount Credit, Inc. v. Montgomery, 420 S.W.3d 226, 231 (Tex. App.—Houston [1st Dist.] 2013, no pet.).
12.If the citation was served on the secretary of state for any reason, the return must show that the secretary of state was served with duplicate copies of the process. See Tex. Bus. Orgs. Code § 5.252; Tex. Civ. Prac. & Rem. Code § 17.045(a). Also, a service certificate from the secretary of state should be filed with the court.
See forms 16-1 (Return of Service on Individual Defendant, in Person), 16-2 (Return of Service on Registered Agent, an Individual), and 16-3 (Return of Service on Registered Agent Organization).
§ 16.9Out-of-State Service on Individual
A resident defendant’s absence from the state does not prevent service. See Tex. R. Civ. P. 108. Rule 108 provides for service by a disinterested person who is at least eighteen years of age with the same effect as if he had been served with citation within the state. Service on a nonresident individual can also be had. Also, if the defendant engaged in business in Texas, service can be had under the long-arm statute, Tex. Civ. Prac. & Rem. Code §§ 17.041–.045, discussed at section 16.14 below. See forms 14-16 through 14-22 in this manual for clauses for party designation.
Service on any partner will support a judgment against the partnership and against the individual partner actually served. Tex. Civ. Prac. & Rem. Code §§ 17.022, 31.003. An agent or clerk employed by a partnership may be served in specific instances. See Tex. Civ. Prac. & Rem. Code § 17.021. If a default judgment against a partnership is attacked by restricted appeal the judgment will not stand unless the plaintiff shows strict compliance with the requirements of Tex. Civ. Prac. & Rem. Code § 17.021(a). See Ashley Forest Apartments (Lindsay Enterprises) v. Almy, 762 S.W.2d 293, 294–95 (Tex. App.—Houston [14th Dist.] 1988, no writ) (default judgment reversed; no showing that defendant apartment complex was a partnership). A foreign partnership engaging in business in Texas may be served under the long-arm statute, discussed at section 16.14 below.
The citation must also comply with the requirement of Tex. R. Civ. P. 99 that it be “directed to the defendant.” To withstand an attack on a default judgment against a partnership, the citation must be directed to the partnership and not just a partner. ISO Production Management 1982, Ltd. v. M&L Oil & Gas Exploration, Inc., 768 S.W.2d 354, 355–56 (Tex. App.—Waco 1989, no writ). A judgment may stand against an individual partner not served if he files an answer or otherwise appears either personally or through his attorney. Bentley Village, Ltd. v. Nasits Building Co., 736 S.W.2d 919, 923 (Tex. App.—Tyler 1987, no writ).
Service may be had on a limited partnership by serving any general partner or the registered agent for service of process. Tex. Bus. Orgs. Code §§ 5.201, 5.255(2). If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d). If the limited partnership fails to appoint or maintain an agent for service of process or if the registered agent cannot be found with reasonable diligence, service may be had through the secretary of state. Tex. Bus. Orgs. Code § 5.251. No special statutes exist regarding service on a limited liability partnership. The rules applicable to partnerships apply.
§ 16.11Service on Business Corporation
§ 16.11:1Service on Texas Corporation
The president, all vice-presidents, and the registered agent are agents for service on a corporation, and citation may be served on any one of them. Tex. Bus. Orgs. Code §§ 5.201, 5.255(1). The record must show that the person to be served is one of the statutorily designated persons. To determine whether service has been properly effected, the court may consider as prima facie evidence the recitals in the petition, citation, and return of service. See Pleasant Homes v. Allied Bank of Dallas, 776 S.W.2d 153, 154 (Tex. 1989) (return reciting service on named “V.P.” was sufficient); Advertising Displays, Inc. v. Cote, 732 S.W.2d 360, 362 (Tex. App.—Houston [14th Dist.] 1987, no writ). If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d).
If the corporation has failed to appoint or maintain a registered agent or if with reasonable diligence the registered agent cannot be found at the registered office, service may be effected on the Texas secretary of state. Tex. Bus. Orgs. Code § 5.251. See section 16.11:2 below and Tex. Bus. Orgs. Code § 5.252. Because a specific procedure is provided by the Business Organizations Code, the attorney should not use the substituted service procedure set out in Tex. R. Civ. P. 106(b) for a corporation if attempts to serve the corporation have been unsuccessful. In such a case, “the officer’s [unserved] return must itself show the diligence used by the officer to execute the citation and the cause of his failure to execute.” For service on the secretary of state to support a default judgment, there must be “affirmative proof” in the record to show reasonable diligence, and no presumption will be indulged to aid the officer’s return. See Paramount Credit, Inc. v. Montgomery, 420 S.W.3d 226, 231 (Tex. App.—Houston [1st Dist.] 2013, no pet.); David A. Carl Enterprises, Inc. v. Crow-Shutt #14, 553 S.W.2d 118, 120 (Tex. App.—Houston [1st Dist.] 1977, no writ); see also Advertising Displays, Inc. v. Cote, 732 S.W.2d 360, 363 (Tex. App.—Houston [14th Dist.] 1987, no writ) (describing efforts that demonstrated “reasonable diligence”).
The record must show that the secretary of state forwarded the process, notice, or demand by certified mail, with return receipt requested, addressed to the corporation at its most recent address on file with the secretary of state. Tex. Bus. Orgs. Code § 5.253. If a defendant corporation fails to keep the secretary of state notified of its current address, a default judgment based on the faulty address will apparently stand. See Tankard-Smith, Inc. General Contractors v. Thursby, 663 S.W.2d 473, 475–76 (Tex. App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.); TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 707–08 (Tex. App.—Fort Worth 1982, no writ). Also, absent fraud or mistake, the failure of the corporation to claim the notice sent by the secretary of state will not void a default judgment. Zuyus v. No’Mis Communications, Inc., 930 S.W.2d 743, 746–47 (Tex. App.—Corpus Christi–Edinburg 1996, no writ). Service on a security-dealer defendant through the Texas Securities commissioner was insufficient when neither the citation nor return stated title or affiliation of person served or that the person served was authorized to accept service for the commissioner. Harvestons Securities v. Narnia Investments, 218 S.W.3d 126, 134–35 (Tex. App.—Houston [14th Dist.] January 11, 2007, pet. denied).
§ 16.11:2Service Through Secretary of State
Pursuant to Tex. Bus. Orgs. Code § 5.253, the statutory address for service by the secretary of state is the “most recent address of the [defendant entity] on file with the secretary of state.” Previously, the Texas Business Corporation Act required the registered office address. The Business Organizations Code became effective as to all entities on January 1, 2010.
Note that the statutory address for service (most recent address on file with secretary of state) may differ from the certificate of last known address required by Tex. R. Civ. P. 239a. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam) (plaintiff should not have used ineffective statutory service address as last known address; because defendant’s current address was known to plaintiff, that address should have been stated in certificate of last known address).
When Authorized: The secretary of state is the deemed agent of an entity when (l) the entity fails to appoint or does not maintain a registered agent in Texas; (2) with reasonable diligence, the registered agent cannot be found at the registered office; or (3) the certificate of authority of a foreign filing entity has been revoked, or the entity transacts business in Texas without being registered as required by chapter 9. Tex. Bus. Orgs. Code § 5.251. Though diligence may be established through the unexecuted return, an affidavit may more effectively communicate specific service attempts, establishing diligence. See form 16-11.
In order to exercise reasonable diligence, the officer or process server must attempt to effect service on the registered agent, and the attempt must be made at the registered office. In Paramount Credit, Inc. v. Montgomery, reasonable diligence was not established because the record did not show an attempt to serve the registered agent at the registered office. See Paramount Credit, Inc. v. Montgomery, 420 S.W.3d 226 (Tex. App.—Houston [1st Dist.] 2013, no pet.). The record should show on whom, where, when, how, and in what capacity attempted service of process was made. Paramount, 420 S.W.3 at 231; see also Legends Landscapes LLC v. Brown, No. 06-13-00129-CV, 2014 WL 1260624, at *8 (Tex. App.—Texarkana Mar. 27, 2014, no pet.) (mem. op.) (no reasonable diligence when evidence showed service attempted on entity only; service must instead be attempted on registered agent personally); Humphrey Co. v. Lowry Water Wells, 709 S.W.2d 310, 311 (Tex. App.—Houston [14th Dist.] 1986, no writ) (no reasonable diligence when petition did not allege that address at which service could be effected was the registered office of defendant); David A. Carl Enterprises, Inc. v. Crow-Shutt #14, 553 S.W.2d 118, 120 (Tex. App.—Houston [1st Dist.] 1977, no writ) (no reasonable diligence when citation showed service at address other than registered office address). Thus, while service on a proper officer or agent may be effected anywhere, if unsuccessful it will support substituted service on the secretary of state only if it has been attempted on the registered agent at the registered office. Ingram Industries, Inc. v. U.S. Bolt Manufacturing, 121 S.W.3d 31, 34 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (reasonable diligence established by one attempt to serve registered agent at registered office; record as whole may be considered as to diligence).
A corporation has a duty to keep the secretary of state apprised of its current registered office address and is negligent if it fails to do so. Campus Investments, Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004) (per curiam) (citing Tex. Bus. Corp. Act arts. 2.10, 2.10-1, 8.09. These statutes were replaced in 2010 by the Business Organizations Code. See Tex. Bus. Orgs. Code § 5.253, requiring secretary of state to forward process to entity’s most recent address on file with the secretary of state, not the registered office address).
Even if the plaintiff has knowledge of another location where an agent for service might be found, he does not have to attempt service at any address other than the registered office in order to exercise reasonable diligence. See Ingram Industries, 121 S.W.3d at 35; State v. Interaction, Inc., 17 S.W.3d 775, 779 (Tex. App.—Austin 2000, pet. denied); Harold-Elliott Co. v. K.P./Miller Realty, 853 S.W.2d 752, 754–55 (Tex. App.—Houston [1st Dist.] 1993, no writ) (calling for statutory amendment to require service attempt at alternate known address); Advertising Displays, Inc. v. Cote, 732 S.W.2d 360, 363 (Tex. App.—Houston [14th Dist.] 1987, no writ); TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 708 (Tex. App.—Fort Worth 1982, no writ). But a more recent mailing address or email address, if known, should be reported in the Tex. R. Civ. P. 239a certification of last known email address or mailing address. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). This allows the clerk to give required notice of interlocutory or default judgment to a defendant.
Reasonable diligence must be established from the face of the record—either from the unexecuted return or process server’s affidavit. An affidavit is the recommended method to prove diligence. Plaintiff’s counsel must guard against reliance on conclusory returns or affidavits, as statements must be factual. Reasonable diligence may be established from the information on the unexecuted return, which is prepared pursuant to Tex. R. Civ. P. 107(d) (“When the officer or authorized person has not served the citation, the return shall show the diligence used by the officer or authorized person to execute the same and the cause of failure to execute it, and where the defendant is to be found, if ascertainable.”). Proof of diligence must be on file at the time the default judgment was rendered. Marrot Communications, Inc. v. Town & Country Partnership, 227 S.W.3d 372, 376–78 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). The unserved citation must be signed. Hot Shot Messenger Service v. State, 818 S.W.2d 905, 907 n.3 (Tex. App.—Austin 1991, no writ) (per curiam) (citing Tex. R. Civ. P. 107).
The unexecuted return must demonstrate on its face that service on the registered agent at the registered office was actually attempted. See RWL Construction v. Erickson, 877 S.W.2d 449, 451–52 (Tex. App.—Houston [1st Dist.] 1994, no writ); Bilek & Purcell Ind., Inc. v. Paderwerk Gebr. Benteler GmbH & Co., 694 S.W.2d 225, 226–27 (Tex. App.—Houston [lst Dist.] 1985, no writ). But the record as a whole may be considered to determine whether the reasonable diligence standard is satisfied. G.F.S. Ventures v. Harris, 934 S.W.2d 813, 816 (Tex. App.—Houston [1st Dist.] 1996, no writ).
Proof may also be established by an affidavit from the officer or authorized person explaining his diligence, but the affidavit must give specific information and may not be simply conclusory in nature. Longoria v. Exxon Mobil Corp., No. 04-15-00536-CV, 2016 WL 4013783, at *8 (Tex. App.—San Antonio July 27, 2016, pet. denied) (mem. op.) (citing Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Beach, Bait & Tackle, Inc. v. Holt, 693 S.W.2d 684, 686 (Tex. App.—Houston [14th Dist.] 1985, no writ.); Mackie Construction Co. v. Carpet Service, Inc., 645 S.W.2d 594, 596 (Tex. App.—Eastland 1982, no writ). Unsuccessful attempts at substituted service by mail that appear in the record may also be evidence of reasonable diligence. See National Multiple Sclerosis Society v. Rice, 29 S.W.3d 174, 177 (Tex. App.—Eastland 2000, no pet.) (mail returned “attempted not known” did not establish diligence); Cote, 732 S.W.2d at 362–63 (restricted delivery mail to registered agent with return envelope marked “return to sender unclaimed” established reasonable diligence). Process is now forwarded by the secretary of state to the “most recent address on file” pursuant to Tex. Bus. Orgs. Code § 5.253; process was previously forwarded to the registered office address.
The following registered-office cases may be instructive in establishing, for the record, the most recent address on file. If the location of the registered office is not otherwise established by the recitals in the petition, citation, or return, it may be established by a certificate from the secretary of state certifying to the registered agent and the location of the registered office. See Humphrey Co. v. Lowry Water Wells, 709 S.W.2d 310, 312 (Tex. App.—Houston [14th Dist.] 1986, no writ). However, the certificate of the secretary of state showing that the secretary of state mailed process to a particular address does not, standing alone, establish that such address was in fact the defendant’s registered office. Humphrey, 709 S.W.2d at 311; Global Truck & Equipment, Inc. v. Plaschinski, 683 S.W.2d 766, 768 (Tex. App.—Houston [14th Dist.] 1984, no writ).
Perfecting Service on the Secretary of State: Duplicate copies of the citation and petition must be delivered to the secretary of state. See Tex. Bus. Orgs. Code § 5.252(a). See also secretary of state Form 2401, Information on Service of Process on the Secretary of State, available at www.sos.state.tx.us/forms.shtml.
Of course, the secretary will be unavailable to personally receive countless citations. Previously, Tex. Bus. Corp. Act arts. 2.11 and 8.10 allowed service on the secretary, the assistant secretary, or any clerk having charge of the corporation department. At least one court held service on any other employee invalid. See Travis Builders, Inc. v. Graves, 583 S.W.2d 865, 867–68 (Tex. App.—Tyler 1979, no writ). There may be an issue as to validity of service of process that is not made by “delivering to the secretary” per Tex. Bus. Orgs. Code § 5.252(a)(1).
Validity of service delivered to an employee of the secretary of state’s office is indirectly sup-ported by Campus Investments, Inc., 144 S.W.3d at 466. In Campus, the Texas Supreme Court noted that “A certificate . . . from the Secretary of State conclusively establishes that process was served.” The practitioner should always file such a certificate after serving the secretary of state. Campus was decided under the Business Corporations Act, not the Business Organizations Code. The Whitney-service certificate (discussed below) apparently remains conclusive as to service. See also MC Phase II Owner, LLC v. TI Shopping Center, LLC, 477 S.W.3d 489, 493–94 (Tex. App.—Amarillo 2015, no pet.) (absence of Whitney-service certificate from secretary of state was fatal omission).
Secretary of State’s Duties: Tex. Bus. Orgs. Code § 5.253 requires the secretary of state to immediately forward process by certified mail, return receipt requested, to the “most recent address of the entity on file with the secretary of state.” The secretary of state requires a plaintiff to designate the specific address to which the defendant’s documents are to be mailed. Thus the plaintiff apparently must search the secretary of state’s records, determine “the most recent address of the entity on file,” and advise the secretary of state of that address. To bolster the record, the attorney should include the most recent address in an affidavit, filed before entry of judgment.
Service is invalid if the secretary of state forwards process to the wrong address when the defendant has supplied the secretary of state with the correct address. Westmont Hospitality Group, Inc. v. Morris, No. 07-07-0173-CV, 2009 WL 996989, at *4 (Tex. App.—Amarillo Apr. 14, 2009, no pet.) (mem. op.); Texas Inspection Services, Inc. v. Melville, 616 S.W.2d 253, 254–55 (Tex. App.—Houston [lst Dist.] 1981, no writ).
Most Recent Address on File: In El Paisano Northwest Highway, Inc. v. Arzate, the plaintiff attempted to serve the defendant at the registered office. After four failed attempts, an affidavit detailing each attempt was filed and the plaintiff served the secretary of state under Tex. Bus. Orgs. Code § 5.251(1)(B) (allowing service after reasonable diligence in attempting to find the registered agent at the registered office). The secretary of state forwarded the service of citation to the defendant’s registered address, but the process was returned marked “unclaimed.” After the trial court entered a default judgment, the defendant appealed, claiming that process should have been sent to the address of its principal place of business. The court of appeals found that the secretary of state’s certificate “conclusively established that the secretary of state received the service of process for El Paisano and forwarded it to El Paisano as required by statute” and upheld the default judgment. El Paisano Northwest Highway, Inc. v. Arzate, No. 05-12-01457-CV, 2014 WL 1477701, at *1–3 (Tex. App.—Dallas Apr. 14, 2014, no pet.) (mem. op.) (citing Campus Investments, Inc., 144 S.W.3d at 466).
The court in El Paisano also noted that the statute requires the secretary of state to forward the process to “the most recent address of the entity on file with the secretary of state.” Tex. Bus. Orgs. Code § 5.253(b)(1). In the absence of evidence in the record that the defendant’s principal place of business was the most recent address on file, the court found the secretary of state’s service certificate to indirectly establish the most recent address on file with the secretary of state.
Practice Note: A cautious plaintiff serving a defendant through the secretary of state should review the secretary of state’s records and establish in the trial court record before judgment the “most recent address on file with the secretary of state.” This could be done in an affidavit or in the original petition in which an address is pleaded as both the defendant’s registered office address and the “most recent address on file with the secretary of state,” if true. If not, consider pleading both the defendant’s registered office address and the most recent address on file with the secretary of state.
Proof of Service; Whitney Certificate: The term Whitney certificate arises out of Whitney v. L&L Realty Corp., 500 S.W.2d 94 (Tex. 1973). It is also sometimes referred to as the secretary of state service certificate, or secretary of state certificate. The issue in Whitney was whether the record must show not only service on the secretary of state but also that the secretary of state forwarded process to the defendant. Proof of both is required and easily proved by a Whitney certificate, stating that the secretary of state forwarded a copy of the process. Campus Investments, Inc., 144 S.W.3d at 466; Whitney, 500 S.W.2d at 96; MC Phase II Owner, LLC, 477 S.W.3d at 492. The secretary of state certificate alone establishes service of process, if service on the secretary of state is authorized. Campus Investments, Inc., 144 S.W.3d at 466 (noting that improper default judgment arising from defective citation through substituted service on secretary of state could be remedied through bill of review). See also Amor Real Estate Investments, Inc. v. AWC, Inc., No. 05-15-00887-CV, 2016 WL 2753572, at *1–2 (Tex. App.—Dallas May 10, 2016, no pet.) (certificate established proper service, though the certificate noted “no response [apparently, as to certified mail delivery attempt] has been received in this office”) (citing Campus Investments, Inc., 144 S.W.3d at 466); El Paisano, 2014 WL 1477701, at *1–3; Catalyst Partners, Inc. v. BASF Corp., No. 02-10-00377-CV, 2011 WL 2306836, at * (Tex. App.—Fort Worth June 9, 2011, no pet.) (mem. op.) (though process returned “Attempted Not Known,” certificate conclusively establishes that process was served) (citing Campus Investments, Inc., 144 S.W.3d at 466); Autodynamics Inc. v. Vervoort, No. 14-10-00021-CV, 2011 WL 1260077, at *4 (Tex. App.—Houston [14th Dist.] Apr. 5, 2011, no pet.) (mem. op.) (attempt to serve registered agent at registered office constituted reasonable diligence; defendant properly served through secretary of state; certificate conclusive that process was served, though not conclusive as to reasonable diligence) (citing Campus Investments, Inc., 144 S.W.3d at 466).
Some courts may still require the filing of the return of citation, in addition to the secretary of state certificate, as that was the common practice. Campus establishes that the certificate is conclusive as to service on the secretary of state. The secretary of state service certificate, or Whitney certificate, should be purchased from the secretary of state, as it requires only a nominal fee, and should be filed for the purpose of establishing service. For instructions on obtaining the certificate, see secretary of state Form 2401, available at www.sos.state.tx.us/forms.shtml. See Tex. Bus. Orgs. Code § 2.252(b) (“Notice on the secretary of state . . . is returnable in not less than 30 days.”). The certificate must establish to whom and where the secretary of state forwarded process. It need not state that the person to whom the process was directed was the registered agent or that the place to which it was directed was the proper address, as long as the information appears elsewhere in the record. Cote, 732 S.W.2d at 362.
Filing the Whitney certificate at least thirty days after serving the secretary of state should avoid the thirty-day issue in Tex. Bus. Orgs. Code § 5.252(b). But see American Discovery Energy, Inc. v. Apache Corp., 367 S.W.3d 704, 706–07 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (filing return of citation with trial court less than thirty days after unsuccessful attempt at service of process found acceptable to support default judgment; court distinguished between “notice” and “process” when construing Tex. Bus. Orgs. Code § 5.252(b)). The Whitney certificate must be on file when the judgment is signed. See Southern Gulf Operators, Inc. v. Meehan, 969 S.W.2d 586, 588 (Tex. App.—Beaumont 1998, no pet.). Pursuant to Tex. R. Civ. P. 107(h), it is best to have the Whitney certificate and proof of service filed ten days before judgment, excluding the date of filing and the date of judgment.
§ 16.11:3Foreign Corporation Required to Register to Conduct Business in Texas
If a foreign corporation is transacting business in Texas, it may be required to register and have a registered agent in Texas. Tex. Bus. Orgs. Code §§ 9.001, 9.004. Service on such a corporation is the same as for a domestic corporation—citation may be served on the president, any vice-president, or the registered agent. Tex. Bus. Orgs. Code §§ 5.201, 5.255(1). If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d). If there is no registered agent or if he cannot be found at the registered office with reasonable diligence, the secretary of state is an agent for service. Tex. Bus. Orgs. Code § 5.251. See section 16.11:2 above.
For a default judgment against a foreign corporation to stand, some cases require an affirmative showing on the face of the record, by proof independent of the allegations in the petition, recitals in the citation, or statements in the officer’s return, that the person served was in fact the defendant’s agent for service. NBS Southern, Inc. v. Mail Box, Inc., 772 S.W.2d 470, 471–72 (Tex. App.—Dallas 1989, writ denied); but see Conseco Finance Servicing v. Klein Independent School District, 78 S.W.3d 666, 671–72 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (holding that a recital in the petition naming the registered agent is sufficient prima facie evidence unless the defaulted defendant proves otherwise).
A default judgment against a foreign corporation was held to be void when the pleadings referred only to the defendant’s “address” (a post office box) and not to the “home office”; that the defendant received actual notice was irrelevant. Bank of America, N.T.S.A. v. Love, 770 S.W.2d 890, 891–92 (Tex. App.—San Antonio 1989, writ denied); see also Carjan Corp. v. Sonner, 765 S.W.2d 553, 555 (Tex. App.—San Antonio, 1989, no writ) (citation sent to “last known mailing address” did not establish that citation was sent to “home office” address when petition did not indicate that address was “home office”); Seeley v. KCI USA, Inc., 100 S.W.3d 276, 279 (Tex. App.—San Antonio 2002, no pet.) (court refused to infer that the address listed in the petition was the defendant’s home office address); but see Mahon v. Caldwell, Haddad, Skaggs, Inc., 783 S.W.2d 769, 771 (Tex. App.—Fort Worth 1990, no writ) (service on defendant individually and as partner at his “place of business” rather than at “home or home office” address complied with long-arm service requirements; if only one address given in contract as business address, home business address is “home address” or “home office”). Mahon has been criticized. See, e.g., Healey v. Healey, No. 12-15-00047-CV, 2016 WL 4098750, at *2 (Tex. App.—Tyler July 29, 2016, n.p.h.). The better practice is to state in the petition and citation that the defendant’s address is the defendant’s “home address” or “home office address.” See World Distributors, Inc. v. Knox, 968 S.W.2d 474, 477–78 (Tex. App.—El Paso 1998, no writ).
If a foreign corporation is formed when a certificate of formation (or similar instrument) filed with a foreign governmental authority takes effect, the law of the jurisdiction in which the foreign governmental authority is located governs the formation and internal affairs of the corporation. Tex. Bus. Orgs. Code § 1.102. If the foreign corporation is not formed by the filing instrument, the law governing the corporation’s formation and internal affairs is that of the jurisdiction of formation. Tex. Bus. Orgs. Code § 1.103. See Tex. Bus. Orgs. Code § 1.002(43) for a definition of the term formation.
§ 16.11:4Foreign Corporation Not Having Certificate of Authority to Conduct Business in Texas
In many cases that might give rise to a collection suit (for example, conducting an isolated transaction, not in the course of a number of repeated, like transactions), a foreign corporation may do business in Texas without being required to register. See Tex. Bus. Orgs. Code § 9.002. In these cases, citation may be served under the Texas long-arm statute, discussed at section 16.14 below.
If a foreign corporation’s registration is revoked, the secretary of state is the agent of the foreign corporation for service of process. Tex. Bus. Orgs. Code § 5.251.
§ 16.11:5Professional Corporation
The Texas Business Organizations Code does not contain specific provisions regarding service on a professional corporation. Rules applicable to a for-profit corporation, therefore, apply. Tex. Bus. Orgs. Code § 2.109. See section 16.11:2 above.
§ 16.11:6Allegations in Pleadings
Form 14-18 in this manual contains party designations for a suit against a corporate defendant.
§ 16.12Service on Nonprofit Corporation
§ 16.12:1Texas Nonprofit Corporation
Service on a nonprofit corporation may be effected by serving the president, any vice-president, or the registered agent of the corporation. Tex. Bus. Orgs. Code §§ 5.201, 5.255(1). If a committee is authorized to perform the corporation’s chief executive function, each member of the committee is an agent of the corporation. Tex. Bus. Orgs. Code § 5.255(5). If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d). If there is no registered agent or the agent cannot be found at the registered office with reasonable diligence, the secretary of state can be served. Tex. Bus. Orgs. Code § 5.251. See section 16.11:2 above.
§ 16.12:2Foreign Nonprofit Corporation
Citation for a foreign nonprofit corporation authorized to transact business in Texas may be served on the president, any vice-president, the registered agent, or any member of a committee performing the chief executive function of the corporation. Tex. Bus. Orgs. Code §§ 5.201, 5.255(1), (5). If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d). If there is no registered agent or he cannot be found at the registered office with reasonable diligence, the secretary of state is an agent for service. Tex. Bus. Orgs. Code § 5.251. A corporation engaging in business in Texas without maintaining a designated registered agent in the state may be served under the long-arm statute, discussed at section 16.14 below.
§ 16.13Service on Other Business Entities
§ 16.13:1Professional Association
Service on a professional corporation may be effected on each person who is a governing person of the corporation or the registered agent. Tex. Bus. Orgs. Code §§ 5.201, 5.255(4). If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d).
§ 16.13:2Limited Liability Company
Service on a limited liability company or a series of a limited liability company may be effected on the managers or members, if any, or on the registered agent of the company. Tex. Bus. Orgs. Code §§ 5.201, 5.255(3), 5.302, 5.305. If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d). If the company fails to appoint or maintain an agent or the agent cannot be found through reasonable diligence, service may be effected through the secretary of state. Tex. Bus. Orgs. Code § 5.251.
§ 16.13:3Series of Limited Liability Company
Service on a series of a limited liability company may be effected on the managers or members, if any. The registered agent of the limited liability company is an agent of each series of the company for the purpose of service of process. Tex. Bus. Orgs. Code § 5.302(a). Service on a series of a limited liability company that is served on the registered agent must include the name of the company and the name of the series on which the process is to be served. Tex. Bus. Orgs. Code § 5.302(b).
The secretary of state is an agent of a series of a limited liability company for purposes of service of process on the series of the company if the secretary of state is the agent of the company pursuant to Tex. Bus. Orgs. Code § 5.251. The duplicate copies of the process delivered to the secretary of state must include both the name of the company and the name of the series of the company on which the process is to be served. The secretary of state shall forward to the limited liability company named in the process one of the copies of the process, notice, or demand as provided in Tex. Bus. Orgs. Code § 5.253. The secretary of state is not required to send a copy of the process to the series of the limited liability company. Tex. Bus. Orgs. Code § 5.304.
Each governing person of a series of a limited liability company as described in Tex. Bus. Orgs. Code § 101.608 is an agent of the series for purpose of service of process. Tex. Bus. Orgs. Code § 5.305.
§ 16.13:4Service on Association or Joint-Stock Company
Citation for a domestic or foreign unincorporated joint-stock company or association may be served on the president, secretary, treasurer, or general agent. Tex. Rev. Civ. Stat. art. 6134. But see Tex. Civ. Prac. & Rem. Code § 17.023, which provides that citation may be served by (1) serving the president, vice-president, secretary, cashier, assistant cashier, or treasurer of the association; (2) serving the local agent of the association in the county in which the suit is brought; or (3) leaving a copy of the citation at the principal office of the association during office hours. If no officer on whom citation may be served resides in the county in which suit is brought and the association has no agent in that county, citation may be served on any agent representing the association in Texas.
Party designations for pleading an unincorporated entity as a defendant are at form 14-20 in this manual.
§ 16.14Service Under Texas Long-Arm Statute
§ 16.14:1Jurisdictional and Statutory Reach of Long-Arm Statute
By its terms, the Texas long-arm statute reaches any foreign corporation, nonresident natural person, foreign partnership, foreign association, or foreign joint-stock company doing business in Texas. Tex. Civ. Prac. & Rem. Code §§ 17.041–.045. “Doing business” is defined, albeit nonexclusively, in Tex. Civ. Prac. & Rem. Code § 17.042. See also Kawasaki Steel Corp. v. Middleton, 699 S.W.2d 199, 201 (Tex. 1985), in which the supreme court dispensed entirely with the statutory requirements of doing business in Texas in order to find jurisdiction over the defendant because the defendant sold a product that could be reasonably expected to find its way through the stream of commerce to Texas.
As a practical matter, the reach of long-arm jurisdiction has become coextensive with the “minimum contacts” doctrine first expressed by the U.S. Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310 (1945).
The requirements for exercise of long-arm jurisdiction are as follows:
1.The nonresident defendant must have purposefully established minimum contacts with Texas. In this regard, there must be a substantial connection between the defendant and Texas arising out of the action or conduct of the defendant in Texas. If specific jurisdiction is asserted, the cause of action must arise out of or relate to the defendant’s contacts with Texas; if general jurisdiction is asserted, there must have been continuous and systematic contacts between the defendant and Texas and a showing of substantial activities by the defendant in Texas.
2.The assertion of personal jurisdiction must comport with fair play and substantial justice. In order to defeat personal jurisdiction, the defendant must present a compelling case that the presence of some consideration would render jurisdiction unreasonable.
CSR Ltd. v. Link, 925 S.W.2d 591, 594–95 (Tex. 1996); Guardian Royal Exchange Assurance v. English China Clays, P.L.C., 815 S.W.2d 223, 226–29 (Tex. 1991).
Service on Registered Agent: The registered agent of an entity may be served on behalf of the entity. Tex. Bus. Orgs. Code § 5.201(b)(1). The registered agent may be (1) an individual who is a Texas resident and has consented to serve as the registered agent of the entity or (2) an organization that is registered or authorized to do business in Texas and has consented to serve as the registered agent of the entity. Tex. Bus. Orgs. Code § 5.201(b)(2). If the registered agent is an organization as described in Tex. Bus. Orgs. Code § 5.201(b)(2)(B), any employee of the organization may receive service at the registered office. Tex. Bus. Orgs. Code § 5.201(d). The designation or appointment of a person as registered agent by an organizer is an affirmation that the person named in the filing instrument has consented to serve in that capacity. Tex. Bus. Orgs. Code § 5.2011.
Service on Secretary of State: Citation may be served on the secretary of state in the following situations:
1.The defendant does not maintain a place of regular business in Texas or a designated agent, regardless of any statutory requirement. Service on the secretary of state is permissible only if service cannot be effected on the person in charge of the defendant’s business in Texas (see discussion above). See McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965).
2.The nonresident defendant has not appointed or maintained in Texas a designated agent for service when required to do so.
3.Two unsuccessful attempts have been made on different business days to serve each designated registered agent.
4.The defendant is not required to designate an agent for service, but becomes a nonresident after a cause of action arises but before the cause is matured by suit in a court of competent jurisdiction.
Tex. Civ. Prac. & Rem. Code § 17.044.
If the secretary of state is served, duplicate copies of the citation and petition must be delivered and the pleading must state the name and home or home office address of the defendant. Tex. Civ. Prac. & Rem. Code § 17.045(a). To sustain a default judgment, the record must contain proof, such as a certificate from the secretary of state, that the defendant was in fact served by the secretary of state. Whitney v. L&L Realty Corp., 500 S.W.2d 94, 96 (Tex. 1973). If the petition does not allege that the defendant performed a specific act in Texas, the defendant’s evidence that he is a nonresident of Texas will negate jurisdiction. Siskind v. Villa Foundation for Education, Inc., 642 S.W.2d 434, 438 (Tex. 1982). A default judgment based on long-arm service by the secretary of state will not be sustained unless the petition contains allegations that, if true, would make the defendant amenable to process by use of the long-arm statute, and there is proof in the record that the defendant was, in fact, served in the manner required by statute. See McKanna, 388 S.W.2d at 927; South Mill Mushrooms Sales v. Weenick, 851 S.W.2d 346, 350 (Tex. App.—Dallas 1993, writ denied).
To comply strictly with the long-arm statute, substituted service on an individual nonresident with no regular place of business and no registered agent for service of process in Texas requires that the secretary of state be provided with a home address or home office address for service. Chaves v. Todaro, 770 S.W.2d 944, 946 (Tex. App.—Houston [1st Dist.] 1989, no writ); see also Bannigan v. Market Street Developers, Ltd., 766 S.W.2d 591, 592–93 (Tex. App.—Dallas 1989, no writ) (mailing petition to “merchant’s notice address” did not strictly comply with statute, which requires plaintiff to provide secretary of state with “home address” or “home office address”). The address must be current; providing the secretary of state with an out-of-date address for a nonresident doing business in Texas may render a default judgment void on direct attack. On a collateral attack, recitations of due service on the face of the judgment would probably suffice. Bludworth Bond Shipyard v. M/V Caribbean Wind, 841 F.2d 646, 649 n.7, 650 (5th Cir. 1988).
It is not necessary that the secretary of state personally be served. Capitol Brick, Inc. v. Fleming Manufacturing Co., 722 S.W.2d 399, 400 (Tex. 1986). See forms 16-9 (Letter Transmitting Citation for Service on Secretary of State) and 16-10 (Letter to Secretary of State).
Service on Person in Charge of Nonresident Defendant’s Business: If the defendant is not required to maintain a registered agent for service of process and the action arises from the nonresident’s business in Texas, citation may be served on the person who, at the time of service, is in charge of any business in which the nonresident defendant is engaged in Texas. A copy of the process and notice of service on that person must be sent to the defendant or to the defendant’s principal place of business by registered mail or by certified mail, return receipt requested. Tex. Civ. Prac. & Rem. Code §§ 17.043, 17.045(c), (d).
Service on Administrators of Nonresident Decedents and on Agents of Nonresident Incompetents: If the secretary of state was the agent for service of process on a nonresident decedent, the secretary of state is the agent for the decedent’s nonresident administrator, executor, or personal representative or, if no personal representative is appointed, for the deceased’s heir under the law of the foreign jurisdiction. Tex. Civ. Prac. & Rem. Code § 17.044(c).
If the secretary of state is an agent for service of process on a nonresident who is adjudged incompetent, the secretary of state is an agent for service of process on the nonresident’s guardian or personal representative. Tex. Civ. Prac. & Rem. Code § 17.044(d).
If the secretary of state is served with duplicate copies of process as an agent for a nonresident administrator, executor, heir, guardian, or personal representative of a nonresident, the secretary of state shall require a statement of the person’s name and address and shall immediately mail a copy of the process to the person. Tex. Civ. Prac. & Rem. Code § 17.045(e).
The attorney should obtain a certificate from the secretary of state confirming service. See Capitol Brick, Inc. v. Fleming Manufacturing Co., 722 S.W.2d 399, 401 (Tex. 1986); MC Phase II Owner, LLC v. TI Shopping Center, LLC, 477 S.W.3d 489, 493–94 (Tex. App.—Amarillo 2015, no pet.) (citing Campus Investments, Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004) (per curiam)). See forms 16-9 (Letter Transmitting Citation for Service on Secretary of State) and 16-10 (Letter to Secretary of State).
§ 16.15Sheriff or Constable Reluctant to Serve Citation
The attorney occasionally will encounter difficulty in getting a sheriff or constable to serve a defendant whose whereabouts are known. Often, the problems result from the officers’ busy schedules. The attorney should provide the officer with as much information as possible and stay directly in touch with the officer to supply additional information as required. The attorney should also consider selecting a private process server, certified by the Supreme Court of Texas. See www.txcourts.gov/jbcc for a list of over three thousand certified process servers.
The Local Government Code requires that “[t]he sheriff shall execute all process and precepts directed to the sheriff by legal authority and shall return the process or precept to the proper court on or before the date the process or precept is returnable,” and, for failing to do so or for making a false return, the sheriff will be liable for up to $100 to the court to which the process is returnable and will be liable to the injured party for all damages sustained. Tex. Loc. Gov’t Code § 85.021. A similar duty is imposed on constables, subjecting them to a fine of from $10 to $100 and costs, for the benefit of the injured party. Tex. Loc. Gov’t Code §§ 86.021, 86.024. An officer commits a class A misdemeanor if, with intent to obtain a benefit or to harm another, he intentionally or knowingly violates a law relating to his office or employment. Tex. Penal Code § 39.02(a)(1), (b). Held unconstitutional on other grounds, Ex parte Perry, 483 S.W.3d 884, 889 n.5, 901–02 (Tex. Crim. App. 2016).
See sections 16.4, 16.5, and 16.16:6 for more information about using a private process server. When dealing with a sheriff or constable who seems reluctant to carry out his duty, it is more desirable to persuade him to act than to force the issue.
Possible actions the attorney could take include—
1.writing the officer, advising him that the attorney knows the defendant is available for service, sending him copies of the statutes and rulings mentioned in section 16.15:1 above, and pointing out his liability;
2.writing or calling the county attorney in the officer’s county, advising him of the situation and requesting that he attempt to persuade the sheriff or constable to carry out his statutory duty so that legal action against the officer can be avoided; and
3.writing the officer, advising him of the facts and requesting a copy of his bond or the name of the insurance company that provided his bond. A sheriff or constable cannot take office without furnishing a bond, and an officer who intends to be in office for any period will not want a claim made against his bond.
If suit was filed in a county other than that in which service is to be made, remind the officer that any action to enforce sanctions against him will be in the court in which suit was filed and not in his home county.
§ 16.16Service by Publication (Not Recommended)
Practice Note: Rules 116 and 117 of the Texas Rules of Civil Procedure were revised, effective June 1, 2020, to generally require publication in a newspaper and on a Public Information Internet Website. These rules should be reviewed carefully. As discussed in this section, service by publication is not recommended.
§ 16.16:1Grounds for Citation by Publication
Service by publication is not a favored method of service. See Curley v. Curley, 511 S.W.3d 131, 134–35 (Tex. App.—El Paso 2014, no pet.) (citing In re E.R., 385 S.W.3d 552, 564–66 (Tex. 2012)). In re E.R. discusses the serious due-process issues with publication service and is critical of the method. The supreme court states, “[W]hen a defendant’s identity is known, service by publication is generally inadequate.” In re E.R., 385 S.W.3d at 560.
Default judgments with actual notice to the defendant are often overturned. The law abhors a default. Benefit Planners v. Rencare, Ltd., 81 S.W.3d 855, 857–58 (Tex. App.—San Antonio 2002, pet. denied) (citing Hock v. Salaices, 982 S.W.2d 591, 593 (Tex. App.—San Antonio 1998, no pet.)). Service by publication generally provides no notice of the lawsuit to the defendant. Such judgments are even more likely to be set aside or reversed. It is the most expensive service method. Only a sheriff or constable or court clerk should serve by publication in a newspaper, and only a court clerk should serve by publication on the Public Information Internet Website. See Tex. R. Civ. P. 116 and discussion at section 16.16:6 below.
Understanding that such service is discouraged, citation by publication is authorized if—
1.after diligent search, the residence of any party defendant is unknown to the plaintiff;
2.the defendant is a transient person and after due diligence the plaintiff has been unable to locate him; or
3.the defendant is absent from or is a nonresident of Texas and the plaintiff has attempted but failed to obtain personal service of nonresident notice pursuant to Tex. R. Civ. P. 108.
Tex. R. Civ. P. 109. See also In re E.R., 385 S.W.3d at 564; Wood v. Brown, 819 S.W.2d 799, 800 (Tex. 1991).
In most jurisdictions, the clerk will issue a citation based on the affidavit, and a motion and court order will not be required (the approach used in this manual). Because a few courts require a motion, the attorney should ascertain what the court (or clerk) will require. Although Tex. R. Civ. P. 109 permits the plaintiff or his agent or attorney to execute the affidavit, the attorney should not swear to the truth of the facts on which the application is based, especially if the information is derived from a client or other person, including facts about the defendant’s whereabouts; only persons with actual knowledge should sign affidavits incorporating these facts. See section 19.17 in this manual. Before preparing the affidavit, the attorney should discuss with the plaintiff the diligence used in trying to learn the defendant’s whereabouts, the basis for statements that the defendant is out of the state, efforts to serve the defendant under Tex. R. Civ. P. 108, and other relevant facts for inclusion in the affidavit.
It is the court’s duty, before granting judgment, “to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant.” Tex. R. Civ. P. 109. If there is no appearance after publication service, an attorney ad litem shall be appointed to defend the suit and judgment shall be rendered as in other cases. See section 16.16:5. A statement of the evidence, approved and signed by the judge, shall be filed in the cause. Tex. R. Civ. P. 244. Failure to file a signed and approved statement of the evidence is a sufficient ground for reversal. Montgomery v. R.E.C. Interests, Inc., 130 S.W.3d 444, 447 (Tex. App.—Texarkana 2004, no pet.) (discussing strict compliance with service rules).
The affidavit for service by publication should specify facts showing diligence instead of merely reciting that diligence was used. A deficient affidavit may cause reversal of the judgment. Wood v. Brown, 819 S.W.2d at 800 (judgment reversed, insufficient affidavit for publication service).
Suits against unknown shareholders of a defunct corporation, or against unknown heirs of a decedent may be based on service by publication. Tex. R. Civ. P. 111.
Diligence is not shown and a judgment of foreclosure and tax sale can be set aside after citation by publication if a search of county tax rolls or attorney’s files would have produced the tax-payer’s address; a search of city records may be insufficient. Doue v. City of Texarkana, 786 S.W.2d 474, 477 (Tex. App.—Texarkana 1990, writ denied).
§ 16.16:2Alternative to Service by Publication
On motion, the court may order a method of service different from publication if the alternative would be as likely as publication to give the defendant actual notice. Tex. R. Civ. P. 109a. Citation by publication should be used only as a last resort when other methods are impractical.
§ 16.16:3Problems with Service by Publication
Citation by publication will not be effective to support an in personam judgment against a non-resident of Texas. Sgitcovich v. Sgitcovich, 241 S.W.2d 142, 146 (Tex. 1951), cert. denied, 342 U.S. 903 (1952). Even a slight defect in the procedure may render a default judgment invalid. Fleming v. Hernden, 564 S.W.2d 157, 159–60 (Tex. App.—El Paso 1978, writ ref’d n.r.e.). If the plaintiff obtains a judgment rendered on service of citation by publication without the defendant’s having appeared in person or by an attorney of his own selection, the court can grant a new trial based on an affidavit filed by the defendant within two years after signing of the judgment and showing good cause. Tex. R. Civ. P. 329(a). If service was invalid, good cause is not required. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012).
§ 16.16:4Procedure for Service by Publication
Effective June 1, 2020, the citation must be served by publication on the “Public Information Internet Website,” at www.txcourts.gov/judicial-data/citation-by-publication/. See Acts 2019, 86th Leg., R.S., ch. 606, § 9.03 (S.B. 891), eff. Sept. 1, 2019 (codified at Tex. Gov’t Code § 72.034); Tex. R. Civ. P. 116. The citation must also be printed in a newspaper published in the county in which the suit is pending (or if the suit involves land, the county in which the land is located), unless the county in which the publication is required does not have any newspaper published, printed, or generally circulated in the county. The citation must be published once a week for four consecutive weeks, the first publication being at least twenty-eight days before the return date. Tex. R. Civ. P. 116. Citation by publication in a newspaper is served by the sheriff or constable of any county or the clerk of the court in which the case is pending; citation on the Public Information Internet Website is served by the clerk of the court in which the case is pending. Tex. R. Civ. P. 116.
The officer’s return for publication in a newspaper must state how the citation was published, specify the dates of publication, be signed by the officer who served the citation, and be accompanied by an image of the publication. The return for publication on the Public Information Internet Website must specify the dates of publication and be generated by the Office of Court Administration. Tex. R. Civ. P. 117. Requisites of the citation and return are in Tex. R. Civ. P. 99, 114. Usually the attorney submits the plaintiff’s affidavit to the clerk of the court in which the case is pending, who issues the citation and may also serve the citation by publication. Some courts have required a motion and hearing before ordering citation by publication. For an affidavit and a letter to the clerk requesting citation by publication, see forms 16-12 and 16-13 in this chapter. Use caution. As noted at section 16.16:3 above, a slight defect may render the default judgment invalid or void.
§ 16.16:5Appointment of Attorney Ad Litem
If service has been made by publication and no answer has been filed or appearance entered within the prescribed time, the court must appoint an attorney ad litem to defend the suit on behalf of the defendant. Tex. R. Civ. P. 244; see Cahill v. Lyda, 826 S.W.2d 932, 933 (Tex. 1992) (per curiam).
See Forms 16-16 through 16-18 in this chapter for a motion for appointment of attorney ad litem and for orders appointing and discharging the attorney. The attorney ad litem’s fees are taxed as costs, Tex. R. Civ. P. 244, and are generally paid by the plaintiff.
§ 16.16:6Citation by Publication by Private Process Server Questionable
Although Tex. R. Civ. P. 103 authorizes service (without restricting the type of service) by any person authorized by law or by written order of the court who is not less than eighteen years old, Tex. R. Civ. P. 116, as to publication service, requires citation by publication in a newspaper to be served by a sheriff or constable or by the clerk of the court in which the case is pending, and citation by publication on the Public Information Internet Website to be served by the clerk of the court where the case is pending. The safer procedure is to comply with Tex. R. Civ. P. 116. Use an officer or clerk of court when serving by publication.
§ 16.17Appearance Deadline and Time for Default Judgment
In district and county courts, the deadline for the defendant’s appearance is 10:00 a.m. on the Monday next after the expiration of twenty days after the date of service. See Tex. R. Civ. P. 99(c). For justice courts, the deadline is generally the end of the fourteenth day after the date of service. Tex. R. Civ. P. 501.1(c). Justice court practitioners should read the extensively revised 2013 justice court rules 500–510. See chapter 30 in this manual.
If citation was effected by publication for a suit filed in district or county court, the deadline is 10:00 a.m. on the first Monday after the expiration of forty-two days from the date of issuance of the citation. If the case is filed in justice court, the deadline is the end of the forty-second day after the day citation was issued. Tex. R. Civ. P. 502.5(e).
A default judgment cannot be granted until proof of service has been on file with the clerk for ten days (three days in the justice court), exclusive of the day of filing and the day of judgment. Tex. R. Civ. P. 107(h), 501.3(h). Therefore, confirm that a file-stamped copy of return is on file.
A default judgment can be obtained when the defendant has been served with process outside the state under the provisions of rule 108 or 108a. See Tex. R. Civ. P. 107 cmt. If the defendant places his answer in the mail before the deadline, he has met the deadline if the clerk receives it no later than ten days after the deadline. Tex. R. Civ. P. 5; Milam v. Miller, 891 S.W.2d 1, 2 (Tex. App.—Amarillo 1994, writ ref’d).
§ 16.18Pleadings Must Support Default Judgment
When approving a default judgment, compare it to the petition, considering the parties, claims, damages, and finality of judgment. The petition, citation, return of citation, and judgment should mirror each other. See Tex. R. Civ. P. 301 (“The judgment shall conform to the pleadings”); G&O Diaz Trucking v. Multi Service Technology Solutions Corp., No. 05-14-00032-CV, 2014 WL 5768714, at *4–5 (Tex. App.—Dallas Nov. 6, 2014, no pet.) (mem. op.) (sworn account; name variance of plaintiff, here abbreviated “MSTSC” vs. “MSTSI”; reversed and remanded).
Check that the following requirements for petitions are mirrored in the judgment:
1.The petition must precisely name the parties. Google, Inc. v. Expunction Order, 441 S.W.3d 644, 646–47 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (Google never served or named a party; expunction order void).
2.The petition must assert a legally cognizable cause of action. The petition must allege facts that give rise to a cause of action. If no liability exists as a matter of law on the facts alleged in the petition, a default judgment cannot be granted. First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 645 (Tex. App.—Dallas 1987, no writ).
3.The petition must assert a cause of action on which relief is granted. A default judgment must be based on the pleadings before the court. To support a default judgment, the petition must attempt to state a cause of action that is within the court’s jurisdiction, must give fair notice of the claim asserted and the relief sought, and must not affirmatively disclose the invalidity of the claim. Stoner v. Thompson, 578 S.W.2d 679, 682–85 (Tex. 1979).
4.The petition must include specific allegations. Mere conclusory allegations of a cause of action may not be sufficient to support a judgment by default. In Paramount Pipe & Supply Co. v. Muhr, 749 S.W.2d 491, 494–95 (Tex. 1988), the court stated that—
[in Stoner, 578 S.W.2d at 684–85,] we wrote that while a petition which serves as the basis for a default judgment may be subject to special exceptions, the default judgment will be held erroneous only if (l) the petition (or other pleading of the non defaulting party that seeks affirmative relief) does not attempt to state a cause of action that is within the jurisdiction of the court, or, (2) the petition (or pleading for affirmative relief) does not give fair notice to the defendant of the claim asserted, or (3) the petition affirmatively discloses the invalidity of such claim.
Paramount, 749 S.W.2d at 494.
See also Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) (fair notice standard met when opposing party can ascertain nature of claim, basic issues, and evidence that might be relevant to the controversy).
5.The petition must request the damages or relief granted. Tex. R. Civ. P. 301. See, e.g., Capitol Brick, Inc. v. Fleming Manufacturing Co., 722 S.W.2d 399, 401 (Tex. 1986) (judgment modified where award exceeded amount of prayer); Portfolio Recovery Associates, LLC v. Talplacido, No. 05-13-00682-CV, 2014 WL 2583691, at *2–3 (Tex. App.—Dallas June 10, 2014, no pet.) (mem. op.) (same, prayer for other relief at law or equity was not request for monetary damages).
6.The petition must be consistent; beware of exhibits. The petition must not contain internal contradictions. See Cecil v. Hydorn, 725 S.W.2d 781, 782 (Tex. App.—San Antonio 1987, no writ) (no default judgment could be granted on that portion of plaintiff’s case in which allegations of petition conflicted with attached exhibits); King Fuels, Inc. v. Hashim, No. 14-13-00010-CV, 2014 WL 2446613, at *4 (Tex. App.—Houston [14th Dist.] May 29, 2014, no pet.) (mem. op.) (contract allowed recovery of cost of improvements on Exhibit D of contract, but it was blank).
7.A petition against nonresident defendants must allege jurisdictional facts. In actions against nonresidents, the petition must make sufficient jurisdictional allegations to put the defendant on notice that he is responsible to answer. Capitol Brick, Inc. v. Fleming Manufacturing Co., 722 S.W.2d 399, 400 (Tex. 1986); see also Whitney v. L&L Realty Corp., 500 S.W.2d 94, 95 (Tex. 1973); McKanna v. Edgar, 388 S.W.2d 927, 929–30 (Tex. 1965).
8.The petition should not establish that venue is improper. If defendant does not challenge plaintiff’s choice of venue, it is fixed in the county chosen by plaintiff. Wilson v. Texas Parks & Wildlife Department, 886 S.W.2d 259, 260 (Tex. 1994), overruled in part on other grounds by Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000). But in Jackson v. Biotectronics, Inc., 937 S.W.2d 38, 43 (Tex. App.—Houston [14th Dist.] 1996, no writ), the appellate court reviewed the record to confirm that it did not affirmatively demonstrate that venue was improper.
9.The petition must be on file. The plaintiff’s petition on which judgment is sought must be on file on the date the default judgment is granted. See Carborundum Co. v. Keese, 313 S.W.2d 332, 334–35 (Tex. App.—Amarillo 1958, writ ref’d n.r.e.) (where petition is filed but subsequently lost, no default judgment can be granted unless Tex. R. Civ. P. 77 substitution procedures are followed). The plaintiff must serve the defendant with the live pleading that is on file at the time of service. Caprock Construction Co. v. Guaranteed Floorcovering, Inc., 950 S.W.2d 203, 204–05 (Tex. App.—Dallas 1997, no writ).
§ 16.19Default Judgment on Liquidated Damages
Tex. R. Civ. P. 241 states the following:
When a judgment by default is rendered against the defendant, or all of several defendants, if the claim is liquidated and proved by an instrument in writing, the damages shall be assessed by the court, or under its direction, and final judgment shall be rendered therefor, unless the defendant shall demand and be entitled to a trial by jury.
A claim is liquidated if the amount of damages caused by the defendant can be accurately calculated from (1) the factual, as opposed to conclusory, allegations in the petition and (2) an instrument in writing. Whether a claim is liquidated must be determined from the language of the petition, as a seemingly liquidated claim may be unliquidated because of pleading allegations which require proof for resolution. Sherman Acquisition II LP v. Garcia, 229 S.W.3d 802, 809 (Tex. App.—Waco 2007, no pet.) (citing Pentes Design, Inc. v. Perez, 840 S.W.2d 75, 79 (Tex. App.—Corpus Christi–Edinburg 1992, writ denied).
The court must be able to calculate the amount of the judgment with certainty solely from the instruments sued on and the factual, as opposed to the merely conclusory, allegations of the petition. See Abcon Paving, Inc. v. Crissup, 820 S.W.2d 951, 953 (Tex. App.—Fort Worth 1991, no writ); Willacy County v. South Padre Land Co., 767 S.W.2d 201, 204 (Tex. App.—Corpus Christi–Edinburg 1989, no writ); BLS Limousine Service, Inc. v. Buslease, Inc., 680 S.W.2d 543, 547 (Tex. App.—Dallas 1984, writ ref’d n.r.e.).
A proper sworn account is a liquidated claim. See Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.—Houston [14th Dist.] 2001, no pet.); Mantis v. Resz, 5 S.W.3d 388, 392 (Tex. App.—Fort Worth 1999, pet. denied) overruled in part on other grounds by Sheldon v. Emergency Medicine Consultants, I, P.A., 43 S.W.3d 701, 702 n.2 (Tex. App.—Fort Worth 2001, no pet.).
§ 16.19:3Requirement of Sufficiency
Not every writing is sufficient. The writing must be sufficiently specific for the court to calculate damages with certainty. Higgins v. Smith, 722 S.W.2d 825, 827 (Tex. App.—Houston [14th Dist.] 1987, no writ) (in action on alleged oral loan, five canceled checks were insufficient written instruments where they did not establish parties to loan, date of repayment, or terms of repayment).
§ 16.20Default Judgment on Unliquidated Damages
If damages are unliquidated or not proved by an instrument in writing, Tex. R. Civ. P. 243 states that the court “shall hear evidence as to damages” before final default judgment may be granted. But case law allows the use of affidavits. “We conclude that because unobjected-to hearsay is, as a matter of law, probative evidence, affidavits can be evidence for purposes of an unliquidated-damages hearing pursuant to Rule 243.” Texas Commerce Bank, N.A. v. New, 3 S.W.3d 515, 516 (Tex. 1999). See also Barganier v. Saddle Brook Apartments, 104 S.W.3d 171, 173–74 (Tex. App.—Waco 2003, no pet.).
“Conclusory evidence of damages is no evidence of damages and will not support an award of damages in a default judgment.” RO-BT Investments, LLP v. Le Properties, No. 14-13-00034-CV, 2014 WL 259826, at *4 (Tex. App.—Houston [14th Dist.] Jan. 9, 2014, no pet) (mem. op.) (citing McCoy v. Waller Group, LLC, No. 05-10-01479-CV, 2012 WL 1470147, at *2 (Tex. App.—Dallas Apr. 26, 2012, no pet.) (mem. op.); Lefton v. Griffith, 136 S.W.3d 271, 277 (Tex. App.—San Antonio 2004, no pet.). Affidavits should be specific, establish personal knowledge, and explain how damages were calculated.
If the cause of action is based in tort, the plaintiff must establish that the damages sustained were caused by defendant’s conduct. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984).
To support a default judgment, the court must hear sufficient evidence on all unliquidated damages. See Tex. R. Civ. P. 243; Holt Atherton Industries v. Heine, 835 S.W.2d 80, 83 (Tex. 1992). See also Otis Elevator Co. v. Parmelee, 850 S.W.2d 179, 181 (Tex. 1993) (trial court, on imposing case-determinative discovery sanctions, improperly awarded unliquidated damages without hearing evidence). Unliquidated damages include the following:
1.Any damages not proved by an instrument in writing. Tex. R. Civ. P. 243.
2.Attorney’s fees “actually incurred.” (“Attorney’s fees are by their very nature unliquidated unless the exact amount is fixed by agreement.” Freeman v. Leasing Associates, 503 S.W.2d 406, 408 (Tex. App.—Houston [14th Dist.] 1973, no writ).
3.“Reasonable” attorney’s fees. Odom v. Pinkston, 193 S.W.2d 888, 891 (Tex. App.—Austin 1946, writ ref’d n.r.e.).
4.“Collection expenses” (in addition to attorney’s fees) if the written instrument does not fix the exact amount. Odom, 193 S.W.2d at 891.
If a party is not present or represented by counsel when testimony is taken on damages following entry of a default judgment, the trial court must require the court reporter to make a record of the evidence. The plaintiff’s attorney should request a record if the court fails to do so. Otherwise, the defendant may seek a new trial on unliquidated damages on the ground that the testimony on which the judgment was based was not recorded, and consequently no statement of facts is available for review of the sufficiency of the evidence. Houston Pipe Coating Co. v. Houston Freightways, 679 S.W.2d 42, 45 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.). See also Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex. 1978); Morgan Express, Inc. v. Elizabeth-Perkins, Inc., 525 S.W.2d 312, 314 (Tex. App.—Dallas 1975, writ ref’d)). The rule that, absent a statement of facts, the appellate court must presume that the evidence was sufficient does not apply on direct review of a default judgment if no statement of facts is available. Morgan Express, 525 S.W.2d at 315; see also Michael Pohl & David Hittner, Judgments by Default in Texas, 37 Sw. L.J. 421, 453 (1983) (explaining that proof is required to support a default judgment for unliquidated damages).
§ 16.21Certificate of Last Known Email and Mailing Address
At or before the taking of a default judgment, the attorney should provide written certification to the clerk of the last known email address or mailing address of defendant(s). The clerk will provide written notice of the judgment to defendant and note the fact of such mailing on the docket. See Tex. R. Civ. P. 239a:
At or immediately prior to the time an interlocutory or final default judgment is rendered, the party taking the same or his attorney must certify to the clerk in writing the last known email address and mailing address of the party against whom the judgment is taken, which certificate shall be filed among the papers in the cause. Immediately upon the signing of a default judgment, the clerk must send written notice thereof to the party against whom the judgment was rendered as provided in Rule21(f)(1) and to the mailing address shown in the certificate, and note the fact of such mailing on the docket . . . . Failure to comply with the provisions of this rule does not affect the finality of the judgment.
Tex. R. Civ. P. 239a (emphasis added).
Note that the statutory address for service of an entity through the secretary of state (the most recent address on file with secretary of state) may differ from the certificate of last known email and mailing address required by Tex. R. Civ. P. 239a. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam) (plaintiff should not have used ineffective statutory service address as last known address; because defendant’s current address was known to plaintiff, that address should have been stated in certificate of last known address).
When providing a last known email address and mailing address, the attorney should request that the clerk provide defendant notice of judgment and, pursuant to Tex. R. Civ. P. 239a, “[n]ote the fact of mailing on the docket.” Defendants sometimes claim they received no notice of the judgment. The docket entry may establish that defendant received prompt notice of judgment.