Untitled Texas Attorney General Opinion ( 2003 )

ATTORNEYGENERAL OF TEXAS
GREG ABBOTT
October 8,2003
The Honorable Jo& R. Rodriguez Opinion No. GA-01 12
El Paso County Attorney
County Courthouse Re: Whether a private process server may serve
500 East San Antonio, Room 503 citation in a forcible entry and detainer suit
El Paso, Texas 79901 (RQ-0052-GA)
Dear Mr. Rodriguez:
You ask “whether a private process server may serve process in a forcible entry and detainer
suit .“’
I. Lepal Backmound: Eviction Suit Statutes and Rules
Chapter 24 of the Property Code provides for both forcible entry and detainer suits and
forcible detainer suits, which it refers to collectively as “eviction suits.” See TEX.PROP.CODEANN.
$8 24.001 (Vernon 2000) (elements of forcible entry and detainer), 24.002 (elements of forcible
detainer), 24.004 (“Eviction suits include forcible entry and detainer and forcible detainer suits.“).
“A justice court in the precinct in which the real property is located has jurisdiction in eviction
suits.” Id. 9 24.004. Each type of suit is a procedure to determine the right to immediate possession
of real property. See id. 4 24.0061(a) (“A landlord who prevails in an eviction suit is entitled to a
judgment for possession of the premises and a writ of possession.“). They are intended to afford a
summary, speedy, and inexpensive means to obtain possession without resort to an action upon the
title. See Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936); Rice v. Pinney, 51 S.W.3d 705,710
(Tex. App.-Dallas 2001, no pet.).
An eviction action “is a special proceeding and as such is governed by . . . special statutes
and rules.” Haginas v. Malbis Mem’l Found., 354 S.W.2d 368, 371 (Tex. 1962). Those special
statutes and rules include chapter 24 of the Property Code, see TEX. PROP. CODE ANN. §§ 24.001-
24.011 (Vernon 2000), and rules 738 through 755 of the Texas Rules of Civil Procedure, see TEX.
R. CIV. P. 738-755 (Part VII, “Rules Relating to Special Proceedings,” Section 3, “Forcible Entry
and Detainer”). These rules of procedure are distinct from both the rules governing district and
county courts, see TEX. R. CIV. P. 15-329b (Part II, “Rules of Practice in District and County
Courts”), and the rules governing actions in justice courts generally, see TEX. R. CIV. P. 523-591
(Part V, “Rules of Practice in Justice Courts”).
‘Letter fromHonorable Jo& R. Rodriguez, El Paso County Attorney, to Honorable Greg Abbott, Texas Attorney
General, at l(May 1, 2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Jose R. Rodriguez - Page 2 (GA-01 12)
A plaintiff initiates either type of eviction action by filing a written sworn complaint in
justice court that describes the property at issue and the factual basis for the action under chapter 24
of the Property Code. See TEX. R. CIV. P. 739, 741. Thereafter, the justice of the peace “shall
immediately issue citation directed to the defendant or defendants commanding him to appear before
such justice at a time and place named in such citation.” TEX. R. CIV. P. 739. Service of citations
is prescribed by rules 742 and 742a. By contrast, rules 103 through 116 govern service of process
in district and county courts while rules 536 and 536a govern service of process in justice court
actions generally. On an appeal of judgments for possession in eviction suits, courts require strict
compliance with rules 742 and 742a. See Winrock Houston Assocs. Ltd. P ‘ship v. Bergstrom, 879
S. W.2d 144,15 1 (Tex. App.-Houston [ 14th Dist.] 1994, no writ) (“[T]he requirements of Rule 742a
for substituted service by delivery to the premises were not strictly complied with, and appellee was
not properly served with citation. A default judgment entered following substituted service is void
where there has not been strict compliance with the rules relating to service of citation.“); Am.
Spiritualist Ass’n v. Ravkind, 313 S.W.2d 121, 124 (Tex. Civ. App.-Dallas 1958, writ ref d n.r.e.)
(“the Justice Court judgment was fatally defective because of a lack of proper service of citation”
under rule 742).
II. Analysis
On behalf of your county’s justices of the peace and constables, you ask whether “a private
process server may serve process in a forcible entry and detainer suit.” Request Letter, supra, note
1, at 1. No statute governs who may serve process in an eviction action. We have not located any
judicial or attorney general
.. opinion addressing this issue, and it appears to be a question of first
impression.
Rules 742 and 742a, the special rules for service of process in eviction actions, provide for
service of a citation by “an officer.” Rule 742 provides:
The ofJicer 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 years, at his usual place of
abode, at least six days before the return day thereof; and on or before I
the day assigned for trial he shall return such citation, with his action
written thereon, to the justice who issued the same.
TEX. R. CIV. P. 742 (emphasis added). Rule 742a provides an alternate method for service, which
may be used if the sworn complaint contains information about the defendant’s home and work
addresses2 and the officer receiving the citation is unsuccessful in serving the citation using the
procedure in rule 742:
2The first paragraph of rule 742a reads: “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 work addresses of the defendant in the county where the premises are located, service of citation may be by
delivery to the premises in question as follows: . . . .” TEX. R. Crv. P. 742a.
The Honorable Jose R. Rodriguez - Page 3 (GA-01 12)
If the oflcer receiving such citation is unsuccessful in serving
such citation under Rule 742, the officer shall no later than five days
after receiving such citation execute a sworn statement that the officer
has made diligent efforts to serve such citation on at least two
occasions at all addresses of the defendant in the county where the
premises are located as may be shown on the sworn complaint, stating
the times and places of attempted service. Such sworn statement
shall be filed by the officer with the justice who shall promptly
consider the sworn statement of the officer. 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.
(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 defendant at the premises in
question and sent by first class mail;
(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 return the citation to the justice who issued it within a certain
time frame] .3
TEX. R. CIV. P. 742a (emphasis added) (footnote added).
You point out that neither rule defines the term “officer.” It is clear from the Rules of Civil
Procedure as a whole, however, that the term “officer” refers to statutory officials, such as a sheriff
or constable. For example, rule 103, the general rule for service of process in district and county
courts, provides that “[clitation and other notices may be served anywhere by (1) any sheriff or
3The last two paragraphs of rule 742a provide as follows:
(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.
It shall not be necessary for the aggrieved party or his authorized agent to
make request for or motion for alternative service pursuant to this rule.
TEX. R. CIV. P. 742a.
The Honorable Jo& R. Rodriguez - Page 4 (GA-01 12)
constable or other person authorized by law4 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 (footnote added),
as does rule 536(a), the general rule for service of process in justice courts, see TEX. R. CIV. P.
536(a). Prior to the addition of subpart (2) to rule 103, appellate courts construed the rules to require
an officer authorized to serve process by rule 103 to attempt service by one of the methods provided
in rule 106(a)( 1) and (2) before the trial court was authorized to appoint a private process server
pursuant to rule 106(b). See Lawyer’s Civil Process, Inc. v. State ex rel. Vines, 690 S.W.2d 939
(Tex. App.-Dallas 1985, no writ). The Texas Supreme Court added subpart (2) to rule 103 in 1988
to “make[] clear that the courts are permitted to authorize persons other than Sheriffs or Constables
to serve Citation,“’ and it added the same language to rule 536(a) in 1990, “[t]o conform justice court
service of citation to the extent practicable to service of citation for other trial court~.“~ In the rules
that follow rules 103 and 536(a), the general term “officer” is used to refer only to statutory officials
whereas the more general term “authorized person” is used to embrace private process servers. See,
e.g., TEX. R. CIV. P. 105,107,536a. Thus, we conclude that the term “officer” in rules 742 and 742a
does not embrace private process servers and that these rules, by their plain language, do not permit
private process servers to serve citations in eviction actions.
You observe that rule 536(a), which establishes who may serve process in justice court
actions generally, provides that citations and other notices may be served “by (1) any sheriff or
constable or other person authorized by law or, (2) 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. 536(a). You suggest this
provision permits private process servers to serve process in eviction actions. We conclude,
however, that rule 536(a) does not govern service of citations in eviction suits. Rule 536(a) provides
for service by an officer or an authorized person and rules 536(b)-(c) and 536a provide methods of
service. See TEX. R. CIV. P. 536-536a. Rules 742 and 742a, which specifically govern eviction
actions, speak exclusively in terms of service of citation by an officer and provide specific methods
of service. See TEX. R. CIV. P. 742-742a, supra at pp. 2-3. Given eviction proceedings’ unique
nature and purpose, special rules applicable only to such actions must prevail over inconsistent rules
governing otherjustice court proceedings or courts generally. See Haginas, 354 S.W.2d at 371 (“An
action of forcible entry and detainer is a special proceeding and as such is governed by the special
statutes and rules . . . .“); R a g s d a 2e v. Ward, 173 S.W.2d 765,766 (Tex. Civ. App.-El Paso 1943,
no writ) (“Forcible entry and detainer is a special proceeding, and as such is governed by the
provisions of law specifically applicable thereto. . . . This being a statutory proceeding, it is essential
the special provisions be looked to and followed . . . .“).
4Sheriffs and constables are expressly required by law to execute process. See TEX. LOC. GOV’T CODE ANN.
$5 85.021(a) (V emon 1999) (“The 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.“),
86.02 1(a) (V emon Supp. 2003) (“A constable shall execute and return as provided by law each process, warrant, and
precept that is directed to the constable and is delivered by a lawful offker.“).
‘See TEX. R. C~V. P. ANN. 103 (Comment-1988) (Vernon 2003).
6See TEX. R. CW. P. ANN. 536 (Comment-1990) (Vernon Supp. 2003).
The Honorable Jose R. Rodriguez - Page 5 (GA-01 12)
Nor do the general rules governing service of process in district and county courts apply in
eviction suits, because rules 742 and 742a specifically prescribe service in such suits. See TEX. R.
CIV. P. 523 (“All rules governing the district and county courts shall also govern the justice courts,
insofar as they can be applied, except where otherwise spec@callyprovided by law or these rules.“)
(emphasis added); Tex. Att’y Gen. Op. No. H- 13 15 (1978) at 2 (concluding that substitute service
prescribed by rules 106 and 109 may not be used in eviction suit; “service of process under Rule 106
or 109 is unauthorized because the manner is ‘otherwise specifically provided’ by Rule 742”)?
You also attempt to harmonize rules 742 and 742a with rule 536(a) by suggesting that rules
742 and 742a “merely express the mandatory duties associated with serving process in forcible entry
and detainer suits, and were not intended to restrict the scope of persons authorized to perform such
duties.” Request Letter, supra note 1, at 2. You posit that rules 742 and 742a “only provide how
process may be served, while Rule 536(a) provides who may serve it.” Id. Your argument derives
from the structure of other more general rules on service of process. Rule 103, for example, specifies
who may serve process in district and county court actions, while rules 105 through 107 specify the
duties of a person serving such process. See TEX. R. CIV. P. 103,105-107; see also P & H Transp.,
Inc. v. Robinson, 930 S.W.2d 857, 859 (Tex. Civ. App.-Houston [ 1st Dist.] 1996, writ denied)
(“Rule 103 simply addresses who may serve; rule 106 addresses the method of service . . . .“).
Similarly, rule 536(a) establishes who may serve citations and other notices in justice court
proceedings generally, while rules 536(b)-(c) and 536a describe methods for such service. See TEX.
R. CIV. P. 536, 536a. But those rules specifying how process may be served expressly refer to
service by “the officer or authorized person.” See, e.g., TEX. R. CIV. P. 105,107,536a. By contrast,
rules 742 and 742a refer only to service by “the officer.” See TEX. R. CIV. P. 742-742a. In doing
so, rules 742 and 742a govern not only how process must be served in eviction suits but also govern
and limit who may serve such process.
In your analysis, you rely heavily on Attorney General Opinion MW-452, in which this office
resolved an inconsistency between past versions of rules 103 and 116, both of which addressed
methods of service in district and county courts, by harmonizing them. See Tex. Att’y Gen. Op. No.
MW-452 (1982) at 1-3. But eviction suits are unique proceedings governed by their own rules,
which may, by design, deviate from other more general rules. Given their special nature, it is not
necessary or appropriate to alter eviction-suit rules by “harmonizing them” with generally applicable
but inconsistent rules.
Finally, you contend that rules 106(b)(2) and 536(c)(2) permit justice courts to authorize
private process servers to serve citations in eviction suits. See Request Letter, supra note 1, at 3.
Rule 106(b)(2) permits a district or county court to authorize service “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.” TEX. R. CIV. P. 106(b)(2). Rule 536(c)(2) p rovides a justice court with parallel
authority. See TEX. R. CIV. P. 536(c)(2). However, both rules permit a court to authorize service
in “any other manner” only if service under a primary method prescribed elsewhere in the rule has
been unsuccessful. See TEX. R. CIV. P. 106(b)(2) (court may authorize service in any other manner
‘The Texas Supreme Court adopted rule 742a, which provides an alternate method for service in eviction suits,
in 1982. See TEX. R. CIV.P. 742a.
The Honorable Jo& R. Rodriguez - Page 6 (GA-01 12)
only “[ulpon motion supported by affidavit. . . showing that service has been attempted under either
(a>(l> or G-9(2) - * . but has not been successtil”), 536(c)(2) ( same). Because the authority granted
to courts in rules 106(b)(2) and 536(c)(2) is contingent on failed service under other methods, those
rules do not provide an independent basis for justice courts to authorize private process servers to
serve process in eviction suits. Moreover, rule 742a provides a special alternate method of service
in eviction actions (service by delivery to the premises) if the officer is unsuccessful in providing
personal service under rule 742. See TEX. R. CIV. P. 742a.
You suggest that there is no reason to restrict service of citations in eviction suits to
“officers” when private individuals may serve process in other kinds of actions. Nonetheless, the
Rules of Civil Procedure retain distinct provisions for service of process in eviction actions, which
we cannot ignore. The Texas Supreme Court has spoken clearly on this point: “[W]e are not free
to disregard [arule’s] plainlanguage.” Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911,915 (Tex.
1992). Any revision of the rules must be left to the Texas Supreme Court’s rules revision process.
See id. (“The Legislature has provided that notice be given before rules amendments become
effective. In addition, this Court has structured the rules revision process to encourage advice and
comment from the bench and bar, and from the public generally. Any revision . . . should be left to
those processes.“); see also Lehmann v. Har-Con Corp., 39 S.W.3d 191,205 (Tex. 2001).
The Honorable Jose R. Rodriguez - Page 7 (GA-01 12)
SUMMARY
A private process server is not authorized to serve citation in
a forcible entry and detainer suit or a forcible detainer suit.
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee