Supremes To Set Service of Process via Social Media Specifications Soon

By Cassandra McGarvey, Founder of McGarvey PLLC on November 4, 2020

As we move into a more digitalized age – one dominated by the internet and online presence – Texas Courts have been hesitant to follow suit, until very recently. In Texas, service of process is done by personally serving the defendant of a lawsuit in person. Texas allows for substituted service when service on the defendant personally is not a viable option. Substituted service methods include leaving a copy of the citation and petition with anyone over 16 years of age at the location specified in the substituted service affidavit or in any manner that the court believes would be reasonably effective to give defendant proper notice1. However, it wasn’t until 2019 that the Texas Legislature allowed service of process via social media presence with Chapter 17 of the Texas Civil Practice and Remedies Code.

Section 17.033 allows substituted service through social media for cases that meet the requirements of substituted service under the Texas Rules of Civil Procedure. Section 17.033 also states that the Supreme Court of Texas is required to adopt rules under this section no later than December 31, 2020. While we’re still waiting for the specifications of the Supreme Court, few courts in other jurisdictions have allowed service via social media and it is likely that the Supreme Court of Texas will look to other jurisdiction decisions for guidance.

One case in particular out of New York discussed the criteria required for service via Facebook Messenger. In Baidoo v. Blood-Dzraku2 a woman was seeking the Court’s approval for substituted service of a summons in a divorce proceeding via Facebook Messenger3. The Court put forth three requirements the plaintiff must meet before being entitled to service through Facebook:

  1. The plaintiff is unable to have service personally served on defendant;
  2. It would be impracticable to serve the defendant by substitute service already allowed by the rules; and
  3. Sending the summons through Facebook can reasonably be expected to give the defendant actual notice that he or she is being sued.4

Additionally, the court pointed out several dangers in allowing service via social media that most courts would likely agree with. These dangers include the account purporting to belong to defendant is not actually the defendant’s authentic account; the defendant may not be diligent in logging into his or her account and thus runs the risk of not receiving service until time to answer has passed; and whether the court should require a backup means of service in addition to service via social media.5

These issues are certain to come up once service of process via social media becomes more widespread throughout Texas. Practitioners in Texas must be diligent in their service of process via social media and must defer to the rules soon to be put in place by the Supreme Court in order to make an easy transition into this uncharted territory.

1 Tex. R. Civ. Pro 106(b)
2 Baidoo v. Blood-Dzraku, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015)
3 Id.
4 Id.
5 Id.

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