1 Texas Rules of Civil Procedure, Rule 16: Officer/Authorized - - PDF document

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Sh Sharena Gi a Gilliland, liland, Parker County, District Clerk Lisa Johns Lisa Johnson, Hemphill Co. & Dist. Clerk Karren en W Winter, er, Archer Co. Clerk

 Citations  Return  Methods of Service  Citation by Publication  Tax Cases  Expedited Foreclosure  Family  Probate  AND MORE!!

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 Texas Rules of Civil Procedure, Rule 16:

• Officer/Authorized person endorse on all process

and precepts the day and hour he received them

• The manner in which he executed them
• Time and place of process
• Sign

 Texas Rules of Civil Procedure, Rule 17:

• Unless “otherwise expressly provided by law or

these rules,” officer receiving process cannot demand fee for executing in advance of such execution

• Fee to be taxed and collected as other costs in the

case

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 Texas Rules of Civil Procedure, Rule 99:

• A.

Issuance

 When requested by party, Clerk shall issue  And “deliver the citation as directed by the requesting party.”  Party responsible to obtain service  Party responsible for obtaining a copy of the petition  If requested, Clerk shall issue separate or additional citations  Clerk must retain a copy of citation in court’s file

 Texas Rules of Civil Procedure, Rule 99:

• B.

Form

 Styled “The State of Texas”  Signed by Clerk under seal of court  Contain name and location of court  Show date of filing of the petition  Show date of issuance  List the file number  Names of parties  Be directed to the defendant

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 Texas Rules of Civil Procedure, Rule 99:

• B.

Form

 Name and address of attorney for plaintiff, otherwise name/address of plaintiff  Contain time which require defendant to file a written answer with the Clerk  Contain the address of the Clerk  Notify defendant that failure to answer may result in default judgment for the relief demanded in petition  Direct defendant file written answer on/before 10:00 am Monday next after expiration of 20 days from service

 Texas Rules of Civil Procedure, Rule 99:

• C.

Notice

 Must include this notice: “You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you.”

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 Texas Rules of Civil Procedure, Rule 99:

• D.

Copies

 “The party filing any pleading upon which citation is to be issued and served shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when copies are so furnished the clerk shall make no charge for the copies.”

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 Texas Rules of Civil Procedure, Rule 103

• Sheriff or Constable
• Other person “authorized by law”
• Person authorized by the court not less than age 18
• Person certified by Supreme Court
• Clerk by certified mail or registered mail

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 Texas Rules of Civil Procedure, Rule 105

• Person serving must note on the citation the “day

and hour” received and execute and return without delay

 Rule 107

• Return must include:

 Cause No. and Case Name  Court  Description of what was served  Date/Time process was received for service  Person/entity served  Address served  Date of service or attempted service  Manner of delivery or attempted service  Name of person who served or attempted to serve  If person serving is certified by Supreme Court, include ID number and expiration of certification  Any other info required by law or rule

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 Rule 107

• Return must include:

 Person/entity served  Address served  Date of service or attempted service  Manner of delivery or attempted service  Name of person who served or attempted to serve  If person serving is certified by Supreme Court, include ID number and expiration of certification  Any other info required by law or rule

 Rule 107

• Service by certified mail - return must include

return receipt with addressee’s signature

• If unserved, Return must show diligence used by

person to execute and the cause of failure and where defendant can be found, if ascertainable

• Return must be signed

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 Rule 107

• If served by anyone other than Sheriff, Constable, or

Clerk, the Return must be verified (i.e. notarized) or signed under penalty of perjury.

• If signed under penalty of perjury: “My name is ____,

my date of birth is ___, and my address is ___. I declare under penalty of perjury that the foregoing is true and correct. Executed in ___ County, State of ____, on the ___ day of ___, 20__.”

 Rule 107

• Return and any documents attached must be filed

with the court

• Return must be on file with Clerk for 10 days before

default judgment can be entered

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 Rule 106

• Served by anyone listed in Rule 103 by:

 In person with copy of citation and petition attached  Mailing to defendant via registered or certified mail, return receipt requested with copy of citation and petition

 Rule 106

• “Substituted Service”

 Motion supported by affidavit:

 Affidavit states location of defendants usual place of business/home or other place probably found  Affidavit states specific facts regarding attempts and why unsuccessful

 If motion Granted, service by:

 Leaving copy of citation and petition with anyone over 16 at location specified in affidavit, or  Any other manner the evidence shows will reasonably give defendant notice of the suit

• See also Rule 109a

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 Rule 108 – Another State

• Substantively the same as in Texas

 Rule 108a – Foreign Countries

• Read the rule

 Civil Practice & Remedies Code §17.026

• If service of a defendant may be on the Texas

Secretary of State, send by CM/RRR by clerk or party to SOS

• Service on SOS per Rule 103
• Include $55 and 2 copies of documents being

served

• Defendant served when SOS completes certificate

that he forwarded citation and petition to defendant (Campus Invs. V. Cullever, 144 S.W.3d 464 (Tex. 2004))

• See www.sos.state.tx.us/corp/service-of-

process.shtml and 1 Tex. Admin. Code §71.21(a)

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 Rule 109

• Motion and Affidavit – defendant is transient or

after due diligence cannot find or is absent from Texas

• If Granted, Clerk issue citation for service by

publication

 Rule 111 – Unknown Heirs

• Defendants listed as “Unknown Heirs of ___, deceased”
• r “Unknown Stockholders of ____ Corp.”

 Rule 112 and 113– Unknown Owners of Land

Defendants listed as “All persons claiming any title or interest in land under deed heretofore given to ____ of ____ as grantee.”

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 Rule 114 - Requisites

• Follow Rule 15 and 99
• Styled “State of Texas”
• Directed to defendants (or unknown heirs, etc)
• Names of Parties
• Brief statement of nature of suit
• Description of property involved, if any
• Rule 115 requirements if land involved
• Direct to answer before 10:00 Monday after 42 days

from date of issuance, with specific day of week, day of month to answer

 Rule 116 – Service

• Cite served by Sheriff, Constable, or Clerk by having

the cite published 1x/week for 4 consecutive weeks

• First publication at least 28 days before the return

day of citation

• Publication in county where suit pending, IF there is

a newspaper in said county

• If no newspaper, then in adjoining county
• If involve real estate, publication must be in county

where land located (or adjoining county)

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 Rule 117 – Return

• Return must show and when citation was executed,

specifying specific dates of publication

• Signed by officer
• Include copy of printed publication
• May get a “publisher’s affidavit” to include with the

Return

 SB 891 – Effective 9/1/19  Adds §17.032 and §17.033 CPRC  Provides for Citation by Publication on the

internet or social media

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 Rule 117a – Delinquent Ad Valorem Taxes

• Follow all other Citation Rules
• Exception if defendant out of state, unknown,

transient, etc., attorney requesting issuance of process shall file an affidavit and request citation by publication

• If by publication, published 1x/week for 2 weeks
• Must include brief general description of the

property

• Must include amount of taxes due
• Do not have to attach POP
• Specific format for cite by publication or out of

state service

 Rule 735 – Liens

• Home equity loans, reverse mortgages, etc.
• Tax liens/loans
• HOA assessments

 Rule 736.1 – Application

• Filed in county where property located
• Styled “In re: Order of Foreclosure Concerning

[property’s mailing address] under Tex. R. Civ. P. 736.”

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 Rule 736.2 – Costs

• “All filing, citation, mailing, service and other court

costs and fees are costs of court and must be paid by petitioner at the time of filing an application with the clerk of the court.”

 Rule 736.3 – Citation

• Clerk issue citation for each named respondent and
• ne for “occupant”
• State date placed in mail
• Response due 38 days from date citation placed in

US mail

 Rule 736.3 – Citation

• CLERK serve each citation with copy of application

attached by BOTH first class mail and certified mail

• Citation to respondent is to last know address
• Citation to Occupant is to the property’s mailing

address

• “Concurrently with service” clerk complete return of

service per Rule 107, but do not need a return receipt (i.e. don’t need a “green card”)

• Date of service is date clerk placed in the mail
• “The Clerk must only charge one fee per respondent
• r occupant served under this rule.”

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 Rules 680 – 693a  See also CPRC chapter 65

• Order required and Plaintiff post bond before clerk

can issue (R. 688)

• Citation to defendant same in other cases unless

TRO (TRO must have original petition served also)(R. 686)

 Rules 680 – 693a

• Required: (R. 687)

 Style “The State of Texas”  Directed to person to be enjoined  State the names of all parties, nature of the application, and action of the judge  Command person to desist or continue to act  If TRO, state day/time of hearing  If Temp Inj, returnable at or before 10:00 am, Monday next after 20 days from service  Date, signed, sealed by clerk

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 Rules 680 – 693a

• Sheriff or Constable to serve (R. 688)
• Clerk retain copy in file (R. 688)
• Disobedience – judge can order writ of attachment

to arrest the person (R. 692)

• Divorce – judge has discretion to NOT require a

bond (R. 693a)

 Family Code Chapter 157 – Enforcement

• Capias §§157.101 – 157.115

 Fee is the same for capias as for writ of attachment  Cash bond may be ordered to pay support arrears

• Habeas Corpus §§157.371 – 157.376 (compel

return of child – orders person with child to come to court for hearing)

 Filed in court of continuing exclusive jurisdiction or county where child is found

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 Family Code Chapters 81-88

• No fee for applicant (§81.002) but can be charged

against respondent (§81.003)

• Can be filed as separate suit or during pending

divorce (§§82.001 – 82.005)

• Clerk issue Notice of Application (§82.041):

 Styled “The State of Texas”  Signed and sealed by clerk  Name and location of court  Date application filed  Date Notice of application was issued

 Family Code Chapters 81-88

• Clerk issue Notice of Application (§82.041):

 Date, time, and place of hearing  Cause No.  Name of each applicant and person alleged to have committed family violence  Directed to each person alleged commit fam violence  List name/address of applicant attorney or if pro se, the mailing address of applicant or person designated  State address of clerk

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 Family Code Chapters 81-88

• Clerk issue Notice of Application (§82.041):

 Must state: “An application for protective order has been filed in the court stated in this notice alleging that you have committed family violence. You may employ an attorney to defend against this allegation. You or your attorney, may, but are not required to, file a written answer to the application. Any answer must be filed before the hearing on the application. If you receive this notice within 48 hours before the time set for the hearing, you may request the court to reschedule the hearing not later than 14 days after the date set for the hearing. If you do not attend the hearing, a default judgment may be taken and protective order may be issued against you.”

 Family Code Chapters 81-88

• Service of Notice of Application (§82.043)

 Applicant to provide copies of application (or pay for copies)  Notice of Application served same as citations, etc., but no Cite by Publication  Service of Notice of Application not required before issuance of temporary ex parte order  Service not required if application filed during pending divorce (Notice given per Rule 21a)

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 Family Code Chapters 81-88

• Service of Protective Order (§§85.041 – 85.042

 Serve Respondent – in open court, per Rule 21a, or per any writ or injunction  Serve Respondent NOT present at hearing, clerk mail copy to Resp within 3 days  Serve Applicant – clerk to provide certified copy to applicant in court or mail certified copy within 3 days

 Family Code Chapters 81-88

• Service of Protective Order (§§85.041 – 85.042

 Within 1 business day, CLERK SHALL CLERK SHALL send copy of

• rder and information sheet to:

 Chief of Police –applicant lives in municipality  Sheriff/Constable –applicant does not live in municipality  Title IV-D – if applicant receiving services  Staff Judge Advocate at Joint Force Headquarters – if respondent is active military  School/Day-care – respondent prohibited from schools  DPS if suspends gun license

 Clerk can send electronically

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 Estates Code §258.001- Will produced in

Court

• Clerk issue citation to all parties interested in the

estate

• Citation served by posting
• Citation must state:

 That the application has been filed  Nature of application  Testator’s name  Applicant’s name  Time when court will act on application  Any person interested in estate may appear and contest the application

 Estates Code §258.002- Will NOT produced

in Court

• Clerk issue citation to all parties interested in the

estate

• Citation must:

 Contain substantially statements made in application  ID the court that will act  Time/Place court’s action on application  Be served on testator’s heirs by personal service if resident of TX and addresses known  Service may be publication if heirs not residents of TX, names/addresses unknown, or are transient

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 Estates Code §303.001

• When party files application for letters of

administration, Clerk issue citation to all parties interested in the estate

• Citation served by posting and must state:

 Application has been filed  Nature of application  Decedent’s name  Applicant’s name  Time when court will act  Interested person may appear and contest

 Estates Code §1051.001 – Issuance of

Notice/Process

• Only required to give notice if statute expressly

states or the court may require

• Clerk issue cites, writs, process
• Clerk issue all notices required to guardian

 Estates Code §1051.002 – Direction

• Writs/process (not cites or notice) directed “To any

sheriff or constable within the State of Texas.”

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 Estates Code §1051.003 – Citation/Notice

• Citation or Notice must be:

 Directed to person to be cited/notified  Dated  Style/Cause No.  Court  Generally describe nature of the proceeding  Person to appear or file written contest or answer  When/where performance required  Styled “The State of Texas”  Signed by clerk and sealed

 Estates Code §1051.003 – Citation/Notice

• Notice required to be given by a guardian, must be

signed by the guardian in official capacity

• Precept not required

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 Estates Code §1051.051 – Personal Service

• Service on attorney of record
• If no attorney or attempt unsuccessful:

 SO/Constable serve person in TX  Disinterested person may serve non-resident

• Return must be on file 10 days
• If person cannot be found, clerk issue new

citation/notice for service by publication

 Estates Code §1051.052 – Mail

• Service by regular mail, if permitted
• Clerk or guardian required to issue, send by

CM/RRR to attorney or person

• Return must be on file 20 days
• Date of service is date mailed
• Copy of cit/not and certificate of person mailing

must be filed

• Green card (return receipt) attached to certificate
• Returned undeliverable, issue new cit/not for

service by posting

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 Estates Code §1051.053 – Posting

• Clerk deliver original and copy of cit/not to

SO/constable

• SO/constable post copy at door of county

courthouse or location near where public notices posted

• Post for 10 days
• Date of service is date of posting
• SO/constable return original to clerk stating

date/time of posting

• If guardian required to issue notice for posting,

must be issued in name of guardian, addressed/delivered to officer, filed with county clerk

 Estates Code §1051.054 – Publication

• Publish 1 time
• Publication at least 10 days before return day
• Date of service is date printed in newspaper
• If no newspaper in the county, cit/not served by

posting

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 Estates Code §1051.055 – Serve Attorney

• Notice by: Personal delivery to atty, CM/RRR, or any

mail with proof of delivery

• Served by: another party, attorney for party,

SO/constable, person competent to testify

• Proof of service: written statement of attorney,

return of SO/constable, affidavit of person showing service

 Estates Code §1051.056 – Service

Guardian/Receiver

• Clerk send certified mail to guardian/receiver or

their attorney if they have one

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 Estates Code §1051.101 – Application filed

• Notice must be issued and served
• Citation/Service on the person filing application is

not required

 Estates Code §1051.102 – Issue Citation

• Cite all interested person
• Citation must state:

 Application was filed  Name of proposed ward  Name of application  Name of person to be appointed guardian

• Must be posted
• Contain “clear and conspicuous” statement of right

to be notified of all motions, applications, pleadings

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 Estates Code §1051.103 – Service of Citation

• SO/constable must personally serve:

 Ward 12 years of age or older  Ward’s parents  Court-appointed conservator  Ward’s spouse  Proposed appointed guardian (if person is not the applicant)

• Contain statement of rights under 1051.252 and

1051.102

• If to parent/spouse, relative must elect in writing to

receive notices

 Estates Code §1051.104 – Applicant’s Notice

• Applicant must send CM/RRR copy of application

and notice to:

 Each adult child of ward  Each adult sibling of ward  Administrator of nursing home facility  Operator of residential facility  Person with power of attorney  Person designated to serve as guardian in a probated will of last surviving parent  “Other living relative” other family deceased

• Applicant file copy of notice & proof of delivery,

with affidavit stating notice mailed and name of each person

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 Estates Code §1051.105 – Waiver

• Person entitled to receive cit/not can file waiver

with clerk

 Estates Code §1051.106 – Action by Court

• Court cannot act until applicant complies with

§1051.104(b)

• And not earlier than the Monday next following

expiration of 10 day period

 Estates Code §1051.151 – Personal Service

• Must be signed on the citation/notice
• State date/place of service
• Certify a copy was delivered to the person
• Subscribed and Sworn under “the hand and official

seal of” an officer authorized to take an affidavit

• Returned to county clerk who issued

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 Estates Code §1051.152 – Posting

• SO/Constable posts copy at designated location
• Posting is on a day preceding the return day of

service giving sufficient time for posting

 Estates Code §1051.153 – Proof of Service

• Must be filed before a hearing
• Proof of service consists of:

 Return of service by SO/Constable  Affidavit of private person  If by mail, certificate of clerk or affidavit of guardian or

• ther person with return receipt attached to

affidavit/certificate  If by publication, affidavit of publisher, copy of published cit/not, states date of publication

 Estates Code §1051.154 – Return to Court

• If issued by clerk, return to court on the first

Monday after service perfected

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 Estates Code §1051.201

• Alternative issuance, service, return requires a court
• rder (Rule 106)
• Can get alternative service if:

 Interested person requests  Required method not specified in statute  Required method not adequate

 Estates Code §1051.251 – Waiver of hearing

• Interested persons can waive notice of hearing in

writing

 Estates Code §1051.252 – Request Notice

• Interested person file request to be notified of all or

specific pleadings

• Person requesting must pay fees/costs for copies,

etc

• Clerk to send by regular mail

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 Rules 696 – 716  See also CPRC chapter 62

• Application can be new suit or while pending
• Order required before clerk can issue writ (R. 696)
• Order must:

 Describe property with certainty  State the value of property  County where located  State amount of bond required from plaintiff  State amount of replevy bond for defendant

 Rules 696 – 716

• No writ issued unless plaintiff post bond (R. 698)
• Requisites of Writ (R. 699):

 Directed “To the Sheriff or any Constable within the State of Texas”  Command him to take into his possession the property  Keep the property until further order unless replevied  Prominently display on the front in 10 point font:

 “YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT.”

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 Rules 696 – 716

• Defendant served per Rule 21a with copy of writ,

application, affidavits, and orders

• Copy of writ served on Defendant (R. 700a):

 “To , Defendant: You are hereby notified that certain properties alleged to be claimed by you have been sequestered. If you claim any rights in such property, you are advised: YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISOLVE THIS WRIT.”

 Rules 696 – 716

• Defendant replevy by giving bond to officer who

levied, payable to plaintiff

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 TRCP 592-609  See also CPRC chapter 61

• Order required before writ issued
• Order must (R. 592):

 Specify the maximum value of property that may be attached  Bond amount for Plaintiff  Officer to keep property until further order  Bond amount for Defendant to replevy

 TRCP 592-609

• The Writ:

 Issued only after plaintiff posts bond (R. 592a)  Form of bond (R. 592b)  Write directed “to the Sheriff or any Constable within the Sate of Texas.”  Writ command officer to attach and hold property unless replevied (R. 593)  Form of Writ – see Rule 594

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 TRCP 592-609

• Defendant served per Rule 21a with copy of writ,

application, affidavits, and orders (R. 598a)

• Copy of writ served on Defendant (R. 598a):

 “To , Defendant: You are hereby notified that certain properties alleged to be claimed by you have been attached. If you claim any rights in such property, you are advised: YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PROPERTY BY FILING WITH THE COURT A MOTION TO DISOLVE THIS WRIT.”

 Generally, Government Code §21.001  Other statutory provisions  Writ directing Sheriff/Constable to go and get

the person and bring them to the courthouse (or wherever ordered)

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 Rules 656 – 679  See also CPRC chapter 63

• No writ issued until final judgment or order of court

(R. 658)

• Bond must be posed if writ to be before final

judgment (R. 658a)

• Docket as plaintiff v. defendant (garnishee) (R. 659)
• Writ directed to Garnishee, appear 10:00 am,

Monday next after expiration of 10 days writ served (R. 659)

 Rules 656 – 679

• Specific Form of Writ (R. 661)
• Writ must also contain: “To ___, Defendant: You are

hereby notified that certain properties alleged to be

• wned by you have been garnished. If you claim

any rights in such property, you are advised: YOU HAVE A RIGHT TO REGAIN POSSESSION OF THE PROPERTY BY FILING A REPLEVY BOND. YOU HAVE A RIGHT TO SEEK TO REGAIN POSSESSION OF THE PREROPTY BY FILING WITH THE COURT A MOTION TO DISSOLVE THIS WRIT.”

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 Rules 656 – 679

• Sheriff/Constable can serve or return to Pltf atty for

service if requested (R. 662)

• Serve same as citation or R. 21a, with copy of writ,

application and affidavits, and signed orders

 TRCP 176 - Subpoena  TRCP 151 – 154 – Scire Facias  TRCP 756 – 771 – Partition of Real Estate  TRCP 772 – 778 – Partition of Personal Property  TRCP 779 – 782 & CPRC ch. 66– Quo Warranto

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