Service of process is the legal procedure whereby one party to a lawsuit (the “Petitioner”) gives legal notice to the other party (the “Respondent”) that they have been sued. Typically, service of process requires that the Respondent be served personally. If you know where to find a party or if they will agree to accept service or sign a Waiver, it's a relatively simple task. But what if a person is intent on avoiding service or is located in another state or country? What should be a simple task becomes very difficult, time-consuming, and expensive. Fortunately, a Respondent in a Texas lawsuit may, under certain circumstances, be served through their social media accounts or via their email address. This blog post explores the rules for electronic service of process in Texas and the practical implications for achieving “electronic service” in family law cases.
Introducing Electronic Service by Social Media, Email, or Other Technology!
Texas Rule of Civil Procedure 106, the procedural rule that governs service, now provides that a Court may, in proper circumstances, permit service of citation electronically by social media, email, or other technology.
In determining whether to permit electronic service of process, the Court will consider two key factors: 1) whether the social media account, email address, or other technology actually belongs to the Respondent, and 2) whether the Respondent regularly uses or has recently used the technology. Attempts at personal service must be unsuccessful, and the Petitioner must show that the requested “electronic service” will be reasonably effective to give notice of the suit.
Service through social media or via email requires advance Court approval. It will only be permitted upon a showing that in-person service attempts have been unsuccessful after exercising “due diligence,” and service via social media/email will be “reasonably effective to give the defendant notice of the suit.”
So Why Does This Matter for Family Cases?
Locating and personally serving a Respondent can be a real hassle. People move, travel, hide, and even disappear. And while you may not know where your spouse currently lives or works, you may be able to locate them via email or on social media like Facebook, Twitter, Instagram, or TikTok.
What Must You Do to Serve Someone Electronically?
The same requirements to secure an order for “substituted service,” such as leaving suit papers with someone over 16 or nailing the documents to the Respondent's front door, still apply. You must show the Judge that “due diligence” has been exercised to locate and personally serve the Respondent, with proof of those efforts outlined in an affidavit supporting a Motion for Substituted Service.
In practical terms, you must establish that the Respondent cannot be located, that the Petitioner does not know where the Respondent lives or works, and that the Petitioner does not know of any location where the Respondent can be personally served.
Most courts require a showing of multiple attempts to serve a Respondent at their last known address or place of employment. In situations where you do not have a current residence or work address, it is advisable to demonstrate that telephone directories, tax listings, voter registrations, etc., have been searched to no avail. Lastly, verifying that a Respondent is not currently incarcerated in a known county of residence or the Texas Department of Criminal Justice is good. These efforts should be documented in the affidavit supporting the motion for substituted service.
Once efforts to personally serve a Respondent have been exhausted, to request service by social media or via an email address, you must establish that the social media account or email address through which service will be accomplished is indeed owned and regularly used by the Respondent. In other words, authentication is required!
What Do Judges Require to Authorize Electronic Service of Process?
A Myspace Page with no posts since 2003 is unlikely to pass the test. Likewise, a Facebook or Twitter account for John Smith will require further proof that it is indeed the same John Smith to be served. Helpful evidence may include recent posts, status updates, photo uploads, or the “liking” of other posts.
Further, you must have evidence that the social media account belongs to and identifies the Respondent. Photo posts on Facebook or Instagram of the Respondent at last Saturday's baseball game posting about the home team's victory could go a long way in establishing proof of ownership, especially if other posts tagged or included pictures of the Petitioner or any children involved in the case.
Likewise, just because a social media account appears authentic and genuine doesn't necessarily mean it is. Proof should be developed to demonstrate and ensure that the social media account or email address belongs to the person to be served with the lawsuit. In short, you must show that the person served online is the same person who would be served offline.
Important questions likely to be asked by a Judge will include:
- How do we know the social media account or email address belongs to the person to be served?
- When was the social media account or email address created?
- When was the social media account or email address last used?
- How often is the social media account or email address used?
- Are there unique identifying factors for the social media account or email address?
- How do we know the Respondent will receive the notification of service?
- Does the Respondent regularly “like” or respond to posts?
- Has the Respondent replied to any recent emails in a way that makes clear it is owned by the person to be served?
Common sense applies here. Don't ask to serve someone via social media or email without providing proof that the social media account or email address is being regularly and recently used and without connecting the account to the actual person to be served.
If the social media account or email address was last used years ago, you are unlikely to get approval for service. By demonstrating regular and recent use or replies from a Respondent to the Petitioner or legal counsel, you will have a much better chance of convincing the Judge that the account or email address is valid and will likely give actual notice to the Respondent.
Service by email is tricky because anyone can create an email account. Even in cases where the email account is legitimate, the owner may not use it regularly or at all. Helpful proof to support a request for email service may include recent exchanges between the parties or emails to and from counsel and the Respondent. Often, process servers attempt to contact a Respondent through email to arrange a time and place for service. Those emails may contain sufficient proof that the email address you want to serve is, in fact, a legitimate email account.
The bottom line is that you must show the Court that the social media or email account is current, regularly used, and owned by the person to be served.
The Devil is in the Details!
The recent case of In the Interest of V.R.W., III, a memorandum opinion issued by the Court of Appeals for the Fifth District of Texas in Dallas, underscores the perils of ignoring the details of substituted service in a default judgment situation. In this suit affecting the parent-child relationship, the trial court rendered a default judgment granting Father's petition to adjudicate parentage. Mother was not personally served with process. Rather, she was served via “Facebook” following Father's motion for alternate service through social media means. The Court notes that “in determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.” Tex. R. Civ. P. 106 cmt. (2020).
The motion for alternate service did not mention service by Facebook or by any other social media communication, but Father's unsworn motion for alternative service recited that “reasonably effective notice of the suit may be given to [Mother] by Posting of Facebook.” The trial court granted Father's motion, ordering “that service on [Mother] be effected by Posting on Facebook.” Neither the motion nor the order provided any detail about how or why service in this manner would be reasonably effective to give Mother notice of the suit. Father subsequently filed a “Declaration of Service,” stating that Mother had been served by delivering a copy of the citation, petition, and notices of hearing “via Facebook Messenger” at a specific internet address on May 3, 2022.
In reversing the default judgment, the Court of Appeals noted that the record did not contain any sworn statement or other evidence to show that the proposed “Posting on Facebook” would be reasonably effective to give Mother notice of the suit. There was no evidence that Mother regularly used Facebook and no proof that the address provided was Mother's. The only sworn statement supporting the request for substituted service did not mention Facebook. Further, the trial court's order permitted service by posting on Facebook, while the return of service recited that service was made “via Facebook Messenger.” No specific address was given or included in the motion or the Court's order. The Court concluded that the Mother was not served with process in accordance with the rules of civil procedure. Accordingly, the default judgment was set aside.
Key takeaways of this case include the need to provide proof in the affidavit in support of substituted service that the proposed manner of service (i.e., Facebook) will be reasonably effective to give notice of the suit. Concrete examples, such as attaching posts showing the defendant's recent use of the social media account, as well as posts that “tag” or identify the account as belonging to the defendant (recent photos of the account owner posted by them) would be very effective in showing the account belongs to the defendant. Another key takeaway is that attention must be paid to ensuring the return service shows that service was effected precisely as directed in the Court's order. In our opinion, this would include ensuring that the actual URL where electronic service was delivered is included in the return of service as the “address” where service was effected. When it comes to default judgments, attention to detail is crucial!
Benefits of Electronic Service of Process
The new “service by social media” rule should make service of process easier and, in many instances, more effective in giving notice of a suit versus publication of a legal notice in a newspaper. Let's face it; most newspapers where legal notices are published are not, in reality, ever read by a potential Respondent. On the other hand, service that is sent directly to a person's social media or email inbox has a much higher chance of actually being received and read by the Respondent.
With widely adopted technology such as social media and email, electronic service can provide a cheaper and less time-consuming means of service and perhaps a far more effective way for a Respondent to receive actual notice of suit before a default judgment is taken. In that sense, “electronic service of process” may be a proverbial “win-win.”
Texas Rule of Civil Procedure 108 (service in another state)
Where a Respondent is absent from Texas or is a nonresident, Rule 108 provides that service shall be the same as prescribed for citation to a resident defendant (i.e., personal service wherever they may be located or by substitute means, including “social media” or other “electronic means”).
The Court's authorization to serve a nonresident party by social media or email can be an actual cost and time saver for the family law litigant. In addition, service by social media or email on an out-of-state Respondent can help with the frequent problems of using out-of-state process servers that may have different rules and standards for completing service.
Texas Rule of Civil Procedure 108a (service in foreign countries)
Most family law practitioners know that serving a Respondent internationally is a frustrating, time-consuming, and costly challenge. However, the 2020 amendment to Rule 108a may well solve this complex and expensive problem. The comment to the rule is instructional:
Comment to 2020 Change: Rule 108a is revised to provide that “other means” of service ordered under (a)(6) must not be prohibited by international agreement.
Rule 108a(6) now specifically provides for “other means” of service “as the court orders,” so long as such other means are not prohibited by international agreement or the foreign country's law. If you can demonstrate that service through an authenticated social media or email account would likely give actual notice to the Respondent and that the service method is not prohibited by international agreement, then such service could result in substantial savings of both time and costs.
While we know of no Texas appellate case that addresses international service through social media or email, we are aware of multiple federal appellate cases permitting service internationally through a Respondent's social media account or email address. For example, one federal Court ruled that “service through a Facebook account was permissible on a defendant located in India, a signatory to the Hague Convention.” The Court reasoned that because “service by Facebook is…outside the scope of Article 10 [of the Hague Convention]” and “India has not objected to service by Facebook, and the Court knows of no international treaty prohibiting such means,” service of process through Facebook was an acceptable alternative.
Other courts have permitted service through social media when the service comported with due process and was not prohibited by international agreement. In one case, for example, service was allowed through the active Facebook accounts of Chinese defendants. Another permitted service on a defendant located in Kuwait through his active Twitter account. And yet another authorized service on a defendant residing in Egypt served through his active Facebook following a motion for substituted service. Finally, one case permitted service on a defendant living in Zimbabwe through his active Facebook account.
The iconic “you've got mail” alert may soon be replaced with a “you've been served” notification arriving in a Respondent's social media or email inbox.
Like email, virtually all social media services include an “inbox” or other means to send messages to the account owner directly. Facebook has “Messenger,” while most other social media accounts provide for communication through “DM,” an acronym for direct message. Thus, it is possible to send notice of service directly to the owner's inbox via social media accounts, including Facebook, Twitter, Instagram, and LinkedIn.
Electronic service of process can reduce time, frustration, and cost but may be far more effective in getting actual notice to a Respondent versus other methods like publication in a newspaper that no one will ever read. Regardless, Texas service laws have come of (digital) age!
All this electronic service stuff sounds great, but the reality is you may need a lawyer
Service of process in a lawsuit is fundamental. You cannot proceed with a case until you have correctly achieved service. The right to receive proper notice of a lawsuit is Constitutional in scope and is fundamental to receiving “due process under the law.” It can be a real challenge to locate and properly serve someone with a lawsuit in a mobile society like ours. As a Family Court Judge, I saw countless self-represented litigants repeatedly try (and fail) to achieve this fundamental task. The truth is even lawyers struggle with securing service of process. As a result, cases often languish and sit idle until this crucial initial step is accomplished. A skilled lawyer who understands how to get things done can help. Why waste valuable time and money? Seek out an experienced lawyer who understands the ins and outs of service of process.
Don't Forget to Mediate!
Most family law cases must be mediated at least once before proceeding to a final trial. In fact, most courts will also require mediation in cases involving disputes over custody, visitation, or child support hearing temporary orders. Armatys Millard can help with both! We understand the issues for temporary orders and for a final trial, and we will give you the benefit of our years of judicial experience and knowledge.
Armatys Millard Is Here to Help!
Walter Armatys and John Millard have significant family law experience, both as trial lawyers and as Family Court Judges. This judicial experience gave Walter and John a keen insight into how Judges think, what persuades them, what annoys them, and, importantly, what information Judges need to make an appropriate ruling. Armatys Millard provides mediation and arbitration services for family law disputes pending in Fort Bend, Harris, and surrounding counties. You can count on our extensive family law experience and judicial wisdom to help successfully resolve your case.
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This article was co-written by Walter Armatys and John Millard and was initially presented to the Family Bar of Fort Bend at its monthly luncheon in July 2021. It has been updated to include the recent case of In the Interest of V.R.W., III.