Form 16-9

The record must show grounds for service on the secretary of state. Often, the grounds for service are that with reasonable diligence, the registered agent cannot be found at the registered office. See gener­ally section 16.11:2 in this chapter and Tex. Bus. Orgs. Code § 5.251. As noted in section 16.11:2, rea­sonable diligence is best shown through the process server’s affidavit (form 16-5). As discussed in section 16.11:2 and Tex. Bus. Orgs. Code § 5.253, the secretary of state shall forward process to the most recent address of the entity on file with the secretary of state. Instead of a return of service, a cer­tificate from the secretary of state should be obtained. See discussion about Whitney Certificates at section 16.11:2. “A certificate . . . from the Secretary of State conclusively establishes that process was served. . . . ” Campus Investments, Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004). Service on the secretary of state can be accomplished by private process server, sheriff, constable, or clerk of the court. See Tex. R. Civ. P. 103.

For service pursuant to the Texas long-arm statute, see section 16.14. Request that the secretary of state forward process to the defendant at the defendant’s home or home office address. See Tex. Civ. Prac. & Rem. Code § 17.045(a) and section 16.14:2.

Letter Transmitting Citation for Service on Secretary of State

[Date]

[Name of constable]

Constable, Precinct 1, Travis County

4717 Heflin Lane, Suite 127

Austin, TX 78721

Re:   Secretary of State
[style of case]
Cause No. [number]
[designation and location of court]

[Salutation]

Enclosed are duplicate copies of the citation and petition in the referenced cause to be served on the secretary of state of Texas. In addition to serving duplicate copies of the citation and petition, please deliver to the secretary of state the enclosed letter and check.

We will obtain a Whitney service certificate from the secretary of state, confirming ser­vice. (Campus Investments, Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex. 2004).) Therefore, we do not require that a citation return be filed.

My check for your fee is enclosed. If you have a question or need additional informa­tion, please telephone me (collect if long distance).

Thank you for your immediate attention to this matter.

Sincerely yours,

   
[Name of attorney]

Certified Mail No. [number]

Return Receipt Requested

Enc.