Tex. R. Civ. P. 106 requires that a motion for substituted service be supported by an affidavit. The court will usually require the most direct form of evidence, so the form provided here calls for the affidavit to be executed by the officer or authorized person who attempted service. If the person who received the citation has been unsuccessful in serving the defendant in person or by registered or certified mail and the attorney and the officer or authorized person believe service may be possible under an alternate provision of rule 106, the attorney should prepare an additional affidavit supporting the motion and have a person who has personal knowledge of the situation execute it. The completed affidavit(s) will be filed with the motion for substituted service at form 16-4 in this chapter. No single form affidavit will be appropriate for every situation, and each should be specially drafted based on facts related to the attorney by the person who attempted service; the following is merely an example. Substituted service is discussed at section 16.7.
[Caption. See § 3 of the Introduction in volume 1 of this manual.]
Affidavit in Support of Motion for Substituted Service by Officer
BEFORE ME, the undersigned authority, on this day personally appeared [name of affiant], who swore on oath that the following facts are true:
“I am authorized to serve citations under rule 103 of the Texas Rules of Civil Procedure.
“Citation for Defendant, [name of defendant], in this cause was delivered to the office of the [Sheriff of [county] County, Texas/Constable of Precinct No. [number] of [county] County, Texas/[name and address of person authorized to serve citations]].
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State specific facts relied on by the plaintiff to warrant an order for substituted service. The following paragraphs are sample fact allegations; the actual allegations must be drafted to fit the fact situation. |
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Select one of the following. |
“I attempted to make personal service on Defendant at [address, city], Texas, a residential address shown on the citation, on [number] occasions on [date[s] of attempted service] but was told by someone at that address that Defendant was not there. This residential address is Defendant’s usual place of abode.
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Or |
“I attempted to make personal service on Defendant at [address, city], Texas, a business address shown on the citation, on [number] occasions on [dates of attempted service] but was told by someone at that address that Defendant was not there. This business address is Defendant’s usual place of business.
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Or |
“On [date], I mailed by certified mail a true copy of the citation, with a copy of the petition attached, to [address, city], Texas, as shown on the citation, with delivery restricted to Defendant only, as addressee, but the citation was returned marked ‘unclaimed.’
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Continue with the following. |
“I have personal knowledge of the facts stated above, and they are true and correct.”
[Name of affiant]
Affiant
SIGNED under oath before me on ________________________________.
Notary Public, State of Texas
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Send the original and a copy of the affidavit to the officer. |