Judges: GREG ABBOTT, Attorney General of Texas
Filed Date: 10/8/2003
Status: Precedential
Modified Date: 7/6/2016
The Honorable José R. Rodriguez El Paso County Attorney County Courthouse 500 East San Antonio, Room 503 El Paso, Texas 79901
Re: Whether a private process server may serve citation in a forcible entry and detainer suit (RQ-0052-GA)
Dear Mr. Rodriguez:
You ask "whether a private process server may serve process in a forcible entry and detainer suit."1
An eviction action "is a special proceeding and as such is governed by . . . special statutes and rules." Haginas v. MalbisMem'l Found.,
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,
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 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 years, at his usual place of abode, at least six days before the return day 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.
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:
If the officer 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 "[c]itation and other notices may be served anywhere by (1) any sheriff or 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,
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 other justice court proceedings or courts generally.See Haginas,
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 specifically provided by law or these rules.") (emphasis added); Tex. Att'y Gen. Op. No.
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,
In your analysis, you rely heavily on Attorney General Opinion
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) provides 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 only "[u]pon motion supported by affidavit . . . showing that service has been attempted under either (a)(1) or (a)(2) . . . but has not been successful"), 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 [a rule's] plain language." Alvarado v. Farah Mfg. Co., Inc.,
Very truly yours,
GREG ABBOTT Attorney General of Texas
BARRY R. McBEE First Assistant Attorney General
DON R. WILLETT Deputy Attorney General — General Counsel
NANCY S. FULLER Chair, Opinion Committee
Mary R. Crouter Assistant Attorney General, Opinion Committee
(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.
Lehmann v. Har-Con Corp. , 39 S.W.3d 191 ( 2001 )
Alvarado v. Farah Manufacturing Co. , 830 S.W.2d 911 ( 1992 )
Rice v. Pinney , 51 S.W.3d 705 ( 2001 )
American Spiritualist Ass'n v. Ravkind , 313 S.W.2d 121 ( 1958 )
Haginas v. Malbis Memorial Foundation , 163 Tex. 274 ( 1962 )
Scott Et Ux. v. Hewitt , 127 Tex. 31 ( 1936 )
Lawyers Civil Process, Inc. v. State Ex Rel. Vines , 690 S.W.2d 939 ( 1985 )
Winrock Houston Associates Ltd. Partnership v. Bergstrom , 879 S.W.2d 144 ( 1994 )
P & H TRANSPORTATION, INC. v. Robinson , 930 S.W.2d 857 ( 1996 )