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

Apr 20, 2023 •456 likes •1.09k views

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

  1. 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!! 1

  2.  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 2

  3.  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 3

  4.  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.” 4

  5.  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.” 5

  6.  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 6

  7.  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 7

  8.  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 8

  9.  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 9

  10.  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 10

  11.  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) 11

  12.  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” or “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.” 12

  13.  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) 13

  14.  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 14

  15.  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.” 15

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