Texas Courts May Allow Service of a Lawsuit by Email or Social Media

Citation

Tex. R. Civ. P. 106(b)(2), as amended by Misc. Docket No. 20-9103 (final approval, Misc. Docket No. 20-9148); Tex. Civ. Prac. & Rem. Code § 17.033

Court or agency

Supreme Court of Texas

Date

December 31, 2020

Law

Texas law

Summary

The Legislature in 2019 added Civil Practice and Remedies Code § 17.033 and directed the Supreme Court to write rules for substituted service through social media. The Court amended Rule 106 on August 21, 2020, and gave final approval on December 18, 2020, effective December 31, 2020. The comment tells courts to consider whether the account actually belongs to the defendant and whether the defendant uses it.

Background

A Texas lawsuit normally starts with service of citation: a constable, sheriff, or certified process server hands you the papers, or they are sent by registered or certified mail. If those attempts fail, Rule 106(b) lets the plaintiff ask the judge for “substituted service,” backed by a sworn statement describing where the defendant can probably be found and the failed attempts. Traditionally that meant leaving the papers with someone over 16 at your home or posting them on your door.

In 2019, S.B. 891 added § 17.033 to the Civil Practice and Remedies Code. It allows a court, when substituted service is authorized, to order service through a defendant’s social media presence, and it directed the Supreme Court of Texas to adopt rules to implement it.

What changed

In Misc. Docket No. 20-9103 (August 21, 2020) the Court amended Rule 106. The Court gave final approval without further changes in Misc. Docket No. 20-9148 (December 18, 2020), and the amendment took effect December 31, 2020.

• Electronic service authorized. Rule 106(b)(2) now allows substituted service “in any other manner, including electronically by social media, email, or other technology,” if the statement or other evidence shows the method “will be reasonably effective to give the defendant notice of the suit.”
• Sworn statement. The motion may be supported by a statement sworn before a notary or made under penalty of perjury, rather than a notarized affidavit only.
• Guidance to judges. The official comment says courts “should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.”

The order also made related changes to Rule 108a, which governs service in foreign countries.

Our take

Electronic service makes sense when a defendant is actively avoiding service and plainly uses a particular account. The risk in consumer debt cases is different. Debt buyers often work from old contact data, and an email address or social media profile tied to a name may be abandoned, mistyped, or someone else’s.

The rule does not lower the bar for proof. A judge must still find the chosen method reasonably effective, and Texas law requires strict compliance with the order authorizing substituted service before a no-answer default judgment can stand. Electronic service gives plaintiffs a new tool, but it also gives defendants new questions to raise about whether the account was really theirs and whether the order was followed exactly.

What it means if you’re sued in Texas

Do not ignore an email, text, or social media message that says you have been sued, even if it looks suspicious. Check the court’s online records or call the clerk to confirm whether a case exists and when your answer is due. If you learn of a default judgment after being “served” through an account you do not use, act quickly, because the deadlines to challenge a judgment are short. A free case review is available if you would like us to look at how you were served.

Takeaway

Take any message about a lawsuit seriously, even one sent by email or direct message. If you were served electronically and never saw it, the method and the court order authorizing it matter, and a default judgment may be open to challenge.

Sources

Primary authority

• Misc. Docket No. 20-9103, order amending Tex. R. Civ. P. 106 and 108a (Supreme Court of Texas)
• Misc. Docket No. 20-9148, final approval of amendments to Rules 106 and 108a (Supreme Court of Texas)
• Texas Civil Practice and Remedies Code chapter 17, including § 17.033 (Texas Constitution and Statutes)

Secondary sources

• Supreme Court of Texas Approves Amendment to Rule 106 Allowing Substituted Service via Social Media (McGinnis Lochridge)

This summary and analysis are general information, not legal advice. Later decisions, amendments or agency actions may change the law; check the current status before relying on it.