2013 Copyright John Steinsiekcopyright 2009 John Steinsiek11 Citations 1 Civil Process Service Of

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek22 Who Can Serve – Rule 103 / 500.8, (12)  1. Any Sheriff or Constable  2. Person authorized by law or written order of the court who is not less than 18  3 Person certified by the Supreme Court  4. Court Clerk by publication if requested

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek33  5. No person who has an interest in suit may serve.  6. Only a Sheriff or Constable may serve evictions or any document requiring taking of persons or property or any process requiring enforcement action

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek44 Attorney Yes the attorney charges for every minute

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek55  Local Gov’t Code governs the establishment of Sheriff and Constables Service Fees  They are established on October 1 st each year  The fee must be based on the cost of providing the service  The fee schedule becomes effective January 1st Service Fees 3

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek66 This all started with 3 Words Dentist Gives Shot 6

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek7copyright 2009 John Steinsiek7 Serve the Citation 7

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek8copyright 2009 John Steinsiek8  The student will be able to identify the courts issuing citation  The student will be able to identify the rules that govern service of citations for those courts  The student will be able to identify the rules that govern alternate service  The student will be able to identify the liability for failure to deliver and return the citation to the court. copyright 2009 John Steinsiek8

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek9copyright 2009 John Steinsiek9 9 District & County Courts Justice of the Peace Probate Courts Civil Suit Citation 31 Rule 106 Civil Suit Citation 42 Rule Eviction Citation 148 Rule (b) Citation 20 Service in person to the Defendant Service In person to the Defendant Service in person to the defendant or to someone over 16 at the address Service in person

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek10copyright 2009 John Steinsiek10 Tex. R. Civ. P. 106—Citations County and District Courts (a)Unless the citation or an order of the court otherwise directs, the citation shall be served by any person authorized by Rule 103 by copyright 2009 John Steinsiek10 (31)

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek11copyright 2009 John Steinsiek11  (1) delivering to the defendant, in person, a true copy of the citation with the date of delivery endorsed there on with a copy of the petition attached thereto, or

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek12copyright 2009 John Steinsiek12 (2)Mailing to the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy of the petition attached thereto. Citations

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek13copyright 2009 John Steinsiek13 Alternate Service Part of (32) Rule 106 (b)Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or copyright 2009 John Steinsiek 13

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek14copyright 2009 John Steinsiek14 other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek15copyright 2009 John Steinsiek15  (a)(1) (In person) or (a)(2) (mailing) at the location named in such affidavit but has not been successful, the court may authorize service

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek16copyright 2009 John Steinsiek16 (1)by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or copyright 2009 John Steinsiek16

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek17copyright 2009 John Steinsiek17 (2)in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek18copyright 2009 John Steinsiek18  An alternate service affidavit should detail your due diligence in the attempted delivery of the document. It should also suggest an effective method of alternate delivery to the defendant (for example, “Attach to the main entry,” etc.). Affidavit (44)

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek19copyright 2009 John Steinsiek19  The server must show due diligence when attempting to serve a document. According to Carter v. MacFadyen, repeated ineffective attempts at service do not constitute due diligence if easily available and more effective alternatives are ignored (Carter v. MacFadyen, 93 S.W.3d 307 (2002)).

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek20copyright 2009 John Steinsiek20  In Webster v. Thompson the court stated, “To prove diligence, the plaintiff should keep a log of its attempts to serve the defendant. The log must show constant and continuous attempts at service.” (Webster v. Thompson, 5 S.W.3d 287 (1999)) A good rule of thumb is: If it is not written down, it didn’t happen. Rule 106

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek21copyright 2009 John Steinsiek21copyright 2009 John Steinsiek21 JP – Rule (501.1(c), 502.5) (42) NEW JP RULES

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek22copyright 2009 John Steinsiek22 Alternate Service (43) (e)(1)(2) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and copyright 2009 John Steinsiek22

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek23copyright 2009 John Steinsiek23 stating specifically the facts showing that service has been attempted under either (a)(1) [in person] or (a)(2) [by mail] at the location named in such affidavit but has not been successful, the court may authorize service:

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek24copyright 2009 John Steinsiek24 (1)by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen (16) years of age at the location specified in such affidavit, or (2)In any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit. copyright 2009 John Steinsiek24

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek25copyright 2009 John Steinsiek25 Tex. R. Civ. P (b)— Evictions The officer receiving such citation shall execute the same by delivering a copy of it to the defendant, or by leaving a copy thereof with some person over the age of sixteen (16) years, at his usual place of abode, copyright 2009 John Steinsiek25 (258)

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek26copyright 2009 John Steinsiek26 at least six days before the return day (court date) thereof; and on or before the day assigned for trial he shall return such citation, with his action written thereon, to the justice who issued the same. 742

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek27copyright 2009 John Steinsiek27 Tex. R. Civ. P (b) — Eviction — Delivery to Premises (258) If the sworn complaint lists all home and work addresses of the defendant which are known to the person filing the sworn complaint and if it states that such person knows of no other home or copyright 2009 John Steinsiek27

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek28copyright 2009 John Steinsiek28  work address of the defendant in the county where the premises are located, service of the citation by delivery to the premises in question as follows:

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek29copyright 2009 John Steinsiek29 The justice may then authorize service according to the following: (a)The officer shall place the citation inside the premises by placing it through a door mail chute or by slipping it under the front door; and if neither method is possible or practical, the officer shall securely affix the citation to the front door or main entry to the premises. copyright 2009 John Steinsiek29

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek30copyright 2009 John Steinsiek30 (b)The officer shall, that same day or the next day, deposit in the mail a true copy of such citation with a copy of the sworn complaint attached thereto, addressed to the defendant at the premises in question and sent by first class mail; copyright 2009 John Steinsiek30

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek31copyright 2009 John Steinsiek31 (c)The officer shall note on the return of such citation the date of delivery under (a) above and the date of mailing under (b) above; and copyright 2009 John Steinsiek31

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek32copyright 2009 John Steinsiek32 (d)Such delivery and mailing to the premises shall occur at least six days before the return day of the citation; and on or before the day assigned for trial he shall return such citation with his action written thereon, to the justice who issued the same.

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek33copyright 2009 John Steinsiek33copyright 2009 John Steinsiek33 District & County Courts Justice of the Peace Court Probate Court Officer prepares affidavit 106b b Officer Prepares affidavit 501.(e) 231 Officer prepares affidavit-After the required number of attempts 510.4(b) 258 Attorney prepares motion for alternate service and presents it to court for approval of alternate service Court may use affidavit for approval of motion for alternate service Court may approve alternate service on officers affidavit.

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek34copyright 2009 John Steinsiek34

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek35copyright 2009 John Steinsiek35  When citation by publication is authorized the court may  Prescribe a different method of service  Will be done in a court order  Will prescribe how it is to be done  The return must indicate the service was done in the manor set out in the court order  Rule 244 (appointment of attorney) and Rule 329 (motion for new trail) apply as if the method of delivery had been by publication

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek36copyright 2009 John Steinsiek36 L Gov Code§ (20) Failure to Execute Process. (a)If a constable fails or refuses to execute and return according to law a process, warrant, or precept that is lawfully directed and delivered to the constable, the constable shall be fined for contempt before the court that issued the process, warrant, or precept on the motion of the person injured by the failure or refusal. On the motion of the person injured by the failure or refusal.

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek37copyright 2009 John Steinsiek37 (b)The fine shall be set at not less than $10 or more than $100, with costs. The fine shall be for the benefit of the injured person. The constable must be given 10 days’ notice of the motion.

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek38copyright 2009 John Steinsiek38  Done on a motion before the court issuing the document  Punishment Contempt of Court  Fine not to exceed $  Also liable for all damages sustained by the person when the officer failed to execute and return (18-19)

2013 Copyright John Steinsiekcopyright 2009 John Steinsiek39copyright 2009 John Steinsiek39 Review Service Rules Alternate Service Rules And Liability associated with service