Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
December 28, 1978
JOHN L. HILL
Attorney General
Honorable Joe Resweber Opinion No. H-1315
County Attorney for Harris County
1001Preston Re: Service of process
Houston, Texas 77002 in forcible entry and de-
talner suits
Dear Mr. Resweber:
You have requested our opinion regarding the service of process in a
forcible entry and detainer suit. You have asked
i. Is the manner of service prescribed in
Rule 742 exclusive or may substitute service be
utilized in the manner prescribed by Rules 106
and lOS?
2. In effecting service under Rule 742 on any
person over the age of sixteen years at the usual
place of abode of the defendant, is the officer
under a duty to determine that the person being
served is not a privy of the plaintiff?
The procedure to be followed in forcible entry and detahier suits
(FED) is that set out in Rules 738-755, Texas Rules of Civil Procedure. The
civil statutes relating to FED actions are found in Title 64, articles 3973 -
3994, V.T.C.S. The essential purpose of an FED suit is to effect a speedy
determination of the right to possession of real property. It is a special
proceeding governed by special statutes and rules. Haginas v. Malbis
Memorial Foundation, 354 S.W.2d 368 (Tex. 1962).
Citation is served pursuant to Rule 742 which states:
The officer receiving such citation shall
execute the same by delivering a copy of it to
the defendant, cr 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. Amended by order of Aug.
18, 1947, effective Dec. 31, 1947.
P. 5175
Honorable Joe Resweber - Page 2 (H-1315)
There is no provision in the Rules relating to FED suits allowing substitute service
as is provided by Rules 106 and 109, T.R.C.P., which allow service at the defendant’s place
of business, by certified mail, by delivery to any one over 16 years of age at the
defendant’s usual place of abode, or “in any other manner which will be reasonably
effective to give the defendant notice of the suit.” T.R.C.P. 106. Rule 109 allows
service by publication. Rule 523 provides that
AR rules governing the district and county courts [which
includes Rules 106 and 1091 shall also govern the justice courts,
insofar as they can be applied, except where otherwise
specifically provided by law or these rules.
We believe that service of process under Rule 106 or 109 is unauthorized because
the manner is “otherwise specifically provided” by Rule 742 which permits only two
methods of service. See Cotterman v. Fahrig, 378 N.E.Pd 742 (Ohio Ct. App. 1972)
(taping citation to door G not one of two method of service provided in FED suits)
You’next ask whether the officer is under a duty to determine whether the person
served with process is a privy or agent of the plaintiff in the FED action. We believe that
the officer must exercise due diligence in ascertaining that he is serving a person named
in the citation to be served. B T.R.C.P. 107 (return shall show diligence used).
We believe that the substitute service on someone over the age of sixteen is valid only if
the person served is at the defendant’s usual abode and has some relationship to the
defendant so that the service is reasonablv calculated to notifv the defendant of the
lawsuit. See Milhken v. Meyers, 311 U.S. 457 (1940); Sessions v: Price Drilling Co., 337
S.W.2d 368%x. Civ. App. - Ft. Worth 1960, writ ref’d n.r.e.); Shaw v. Allied Financing
Co., 330 S.W.2d 690 (Tex. Civ. App. - Dallas 1959)rev’d on other grounds, 337 S.W.2d 107
(Tex. 1960); American Spiritualist A&n v. Ravkind, 313 S.W.2d 121 (Tex. Civ. App. -
Dallas 1958, writ ref’d, n.r.e.). Service on an agent of the plaintiff is probably invalid for
two reasons. First, the person served with the substitute service must be at the
defendant’s usual place of abode which the court have often construed to mean residing
with the defendant. Shaw v. Allied Financing Co., supra; Sessions v. Price Drilling Co.,
. Second, service upon one whose interest is adverse to the defendant denies due
sss as it is a manner not reasonably calculated to give the defendant actual notice of
the suit.
SUMMARY
Service of process in Forcible Entry and Detainer suits must be
pursuant to Rule 742, Tex. Rules Civ. Proc. Service of
plaintiff’s agent may render service invalid.
Attorney General of Texas
P. 5176
Honorable Joe Reaweber - Page 3 (A-1315)
APPROVED:
Opinion Committee
p. 5177