ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

October 8,2003 

The Honorable Jo& R. Rodriguez 

El Paso County Attorney 

County Courthouse 

500 East San Antonio, Room 503 

El Paso, Texas 79901 

Opinion No. GA-01 12 

Re: Whether a private process server may serve 

citation in a forcible entry and detainer suit 

(RQ-0052-GA) 

Dear Mr. Rodriguez: 

You ask “whether a private process server may serve process in a forcible entry and detainer 

suit .“’ 

I. Lepal Backmound: Eviction Suit Statutes and Rules 

Chapter 24 of the Property Code provides for both forcible entry and detainer suits and 

forcible detainer suits, which it refers to collectively as “eviction suits.” See TEX. PROP. CODE ANN. 

$8 24.001 (Vernon 2000) (elements of forcible entry and detainer), 24.002 (elements of forcible 

detainer), 24.004 (“Eviction suits include forcible entry and detainer and forcible detainer suits.“). 

“A justice court in the precinct in which the real property is located has jurisdiction in eviction 

suits.” Id. 9 24.004. Each type of suit is a procedure to determine the right to immediate possession 

of real property. See id. 4 24.0061(a) (“A landlord who prevails in an eviction suit is entitled to a 

judgment for possession of the premises and a writ of possession.“). They are intended to afford a 

summary, speedy, and inexpensive means to obtain possession without resort to an action upon the 

title. See Scott v. Hewitt, 90 S.W.2d 816, 818-19 (Tex. 1936); Rice v. Pinney, 51 S.W.3d 705,710 

(Tex. App.-Dallas 2001, no pet.). 

An eviction action “is a special proceeding and as such is governed by . . . special statutes 

and rules.” Haginas v. Malbis Mem’l Found., 354 S.W.2d 368, 371 (Tex. 1962). Those special 

statutes and rules include chapter 24 of the Property Code, see TEX. PROP. CODE ANN. §§ 24.001- 

24.011 (Vernon 2000), and rules 738 through 755 of the Texas Rules of Civil Procedure, see TEX. 

R. CIV. P. 738-755 (Part VII, “Rules Relating to Special Proceedings,” Section 3, “Forcible Entry 

and Detainer”). These rules of procedure are distinct from both the rules governing district and 

county courts, see TEX. R. CIV. P. 15-329b (Part II, “Rules of Practice in District and County 

Courts”), and the rules governing actions in justice courts generally, see TEX. R. CIV. P. 523-591 

(Part V, “Rules of Practice in Justice Courts”). 

‘Letter fromHonorable Jo& R. Rodriguez, El Paso County Attorney, to Honorable Greg Abbott, Texas Attorney 

General, at l(May 1, 2003) (on file with Opinion Committee) [hereinafter Request Letter]. 
The Honorable Jose R. Rodriguez - Page 2 (GA-01 12) 

A plaintiff initiates either type of eviction action by filing a written sworn complaint in 

justice court that describes the property at issue and the factual basis for the action under chapter 24 

of the Property Code. See TEX. R. CIV. P. 739, 741. Thereafter, the justice of the peace “shall 

immediately issue citation directed to the defendant or defendants commanding him to appear before 

such justice at a time and place named in such citation.” TEX. R. CIV. P. 739. Service of citations 

is prescribed by rules 742 and 742a. By contrast, rules 103 through 116 govern service of process 

in district and county courts while rules 536 and 536a govern service of process in justice court 

actions generally. On an appeal of judgments for possession in eviction suits, courts require strict 

compliance with rules 742 and 742a. See Winrock Houston Assocs. Ltd. P ‘ship v. Bergstrom, 879 

S. W.2d 144,15 1 (Tex. App.-Houston [ 14th Dist.] 1994, no writ) (“[T]he requirements of Rule 742a 

for substituted service by delivery to the premises were not strictly complied with, and appellee was 

not properly served with citation. A default judgment entered following substituted service is void 

where there has not been strict compliance with the rules relating to service of citation.“); Am. 

Spiritualist Ass’n v. Ravkind, 313 S.W.2d 121, 124 (Tex. Civ. App.-Dallas 1958, writ ref d n.r.e.) 

(“the Justice Court judgment was fatally defective because of a lack of proper service of citation” 

under rule 742). 

II. Analysis 

On behalf of your county’s justices of the peace and constables, you ask whether “a private 

process server may serve process in a forcible entry and detainer suit.” Request Letter, supra, note 

1, at 1. No statute governs who may serve process in an eviction action. We have not located any 

judicial or attorney general opinion addressing this issue, and it appears to be a question of first 

. . 

impression. 

Rules 742 and 742a, the special rules for service of process in eviction actions, provide for 

service of a citation by “an officer.” Rule 742 provides: 

The ofJicer receiving such citation shall execute the same by 

delivering a copy of it to the defendant, or 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 I 

the day assigned for trial he shall return such citation, with his action 

written thereon, to the justice who issued the same. 

TEX. R. CIV. P. 742 (emphasis added). Rule 742a provides an alternate method for service, which 

may be used if the sworn complaint contains information about the defendant’s home and work 

addresses2 and the officer receiving the citation is unsuccessful in serving the citation using the 

procedure in rule 742: 

2The first paragraph of rule 742a reads: “If the sworn complaint lists all home and work addresses of the 

defendant which are known to the person filing the sworn complaint and if it states that such person knows of no other 

home or work addresses of the defendant in the county where the premises are located, service of citation may be by 

delivery to the premises in question as follows: . . . .” TEX. R. Crv. P. 742a. 
The Honorable Jose R. Rodriguez - Page 3 (GA-01 12) 

If the oflcer receiving such citation is unsuccessful in serving 

such citation under Rule 742, the officer shall no later than five days 

after receiving such citation execute a sworn statement that the officer 

has made diligent efforts to serve such citation on at least two 

occasions at all addresses of the defendant in the county where the 

premises are located as may be shown on the sworn complaint, stating 

the times and places of attempted service. Such sworn statement 

shall be filed by the officer with the justice who shall promptly 

consider the sworn statement of the officer. The justice may then 

authorize service according to the following: 

(a) The officer shall place the citation inside the premises by 

placing it through a door mail chute or by slipping it under the front 

door; and if neither method is possible or practical, the officer shall 

securely affix the citation to the front door or main entry to the 

premises. 

(b) The officer shall that same day or the next day deposit in 

the mail a true copy of such citation with a copy of the sworn 

complaint attached thereto, addressed to defendant at the premises in 

question and sent by first class mail; 

(c) The officer shall note on the return of such citation the date 

of delivery under (a) above and the date of mailing under (b) above 

[and return the citation to the justice who issued it within a certain 

time frame] .3 

TEX. R. CIV. P. 742a (emphasis added) (footnote added). 

You point out that neither rule defines the term “officer.” It is clear from the Rules of Civil 

Procedure as a whole, however, that the term “officer” refers to statutory officials, such as a sheriff 

or constable. For example, rule 103, the general rule for service of process in district and county 

courts, provides that “[clitation and other notices may be served anywhere by (1) any sheriff or 

3The last two paragraphs of rule 742a provide as follows: 

(d) Such delivery and mailing to the premises shall occur at least six days 

before the return day of the citation; 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. 

make 

It shall not be necessary for the aggrieved party or his authorized 

request for or motion for alternative service pursuant to this rule. 

agent to 

TEX. R. CIV. P. 742a. 
The Honorable Jo& R. Rodriguez - Page 4 (GA-01 12) 

constable or other person authorized by law4 or, (2) by any person authorized by law or by written 

order of the court who is not less than eighteen years of age,” TEX. R. CIV. P. 103 (footnote added), 

as does rule 536(a), the general rule for service of process in justice courts, see TEX. R. CIV. P. 

536(a). Prior to the addition of subpart (2) to rule 103, appellate courts construed the rules to require 

an officer authorized to serve process by rule 103 to attempt service by one of the methods provided 

in rule 106(a)( 1) and (2) before the trial court was authorized to appoint a private process server 

pursuant to rule 106(b). See Lawyer’s Civil Process, Inc. v. State ex rel. Vines, 690 S.W.2d 939 

(Tex. App.-Dallas 1985, no writ). The Texas Supreme Court added subpart (2) to rule 103 in 1988 

to “make[] clear that the courts are permitted to authorize persons other than Sheriffs or Constables 

to serve Citation,“’ and it added the same language to rule 536(a) in 1990, “[t]o conform justice court 

service of citation to the extent practicable to service of citation for other trial court~.“~ In the rules 

that follow rules 103 and 536(a), the general term “officer” is used to refer only to statutory officials 

whereas the more general term “authorized person” is used to embrace private process servers. See, 

e.g., TEX. R. CIV. P. 105,107,536a. Thus, we conclude that the term “officer” in rules 742 and 742a 

does not embrace private process servers and that these rules, by their plain language, do not permit 

private process servers to serve citations in eviction actions. 

You observe that rule 536(a), which establishes who may serve process in justice court 

actions generally, provides that citations and other notices may be served “by (1) any sheriff or 

constable or other person authorized by law or, (2) any person authorized by law or by written order 

of the court who is not less than eighteen years of age.” TEX. R. CIV. P. 536(a). You suggest this 

provision permits private process servers to serve process in eviction actions. We conclude, 

however, that rule 536(a) does not govern service of citations in eviction suits. Rule 536(a) provides 

for service by an officer or an authorized person and rules 536(b)-(c) and 536a provide methods of 

service. See TEX. R. CIV. P. 536-536a. Rules 742 and 742a, which specifically govern eviction 

actions, speak exclusively in terms of service of citation by an officer and provide specific methods 

of service. See TEX. R. CIV. P. 742-742a, supra at pp. 2-3. Given eviction proceedings’ unique 

nature and purpose, special rules applicable only to such actions must prevail over inconsistent rules 

governing otherjustice court proceedings or courts generally. See Haginas, 354 S.W.2d at 371 (“An 

action of forcible entry and detainer is a special proceeding and as such is governed by the special 

statutes and rules . . . .“); R a g s d a 2 e v. Ward, 173 S.W.2d 765,766 (Tex. Civ. App.-El Paso 1943, 

no writ) (“Forcible entry and detainer is a special proceeding, and as such is governed by the 

provisions of law specifically applicable thereto. . . . This being a statutory proceeding, it is essential 

the special provisions be looked to and followed . . . .“). 

4Sheriffs and constables are expressly required by law to execute process. See TEX. LOC. GOV’T CODE ANN. 

$5 85.021(a) (V emon 1999) (“The sheriff shall execute all process and precepts directed to the sheriff by legal authority 

and shall return the process or precept to the proper court on or before the date the process or precept is returnable.“), 

86.02 1 (a) (V emon Supp. 2003) (“A constable shall execute and return as provided by law each process, warrant, and 

precept that is directed to the constable and is delivered by a lawful offker.“). 

‘See TEX. R. C~V. P. ANN. 103 (Comment-1988) (Vernon 2003). 

6See TEX. R. CW. P. ANN. 536 (Comment-1990) (Vernon Supp. 2003). 
The Honorable Jose R. Rodriguez - Page 5 (GA-01 12) 

Nor do the general rules governing service of process in district and county courts apply in 

eviction suits, because rules 742 and 742a specifically prescribe service in such suits. See TEX. R. 

CIV. P. 523 (“All rules governing the district and county courts shall also govern the justice courts, 

insofar as they can be applied, except where otherwise spec@callyprovided by law or these rules.“) 

(emphasis added); Tex. Att’y Gen. Op. No. H- 13 15 (1978) at 2 (concluding that substitute service 

prescribed by rules 106 and 109 may not be used in eviction suit; “service of process under Rule 106 

or 109 is unauthorized because the manner is ‘otherwise specifically provided’ by Rule 742”)? 

You also attempt to harmonize rules 742 and 742a with rule 536(a) by suggesting that rules 

742 and 742a “merely express the mandatory duties associated with serving process in forcible entry 

and detainer suits, and were not intended to restrict the scope of persons authorized to perform such 

duties.” Request Letter, supra note 1, at 2. You posit that rules 742 and 742a “only provide how 

process may be served, while Rule 536(a) provides who may serve it.” Id. Your argument derives 

from the structure of other more general rules on service of process. Rule 103, for example, specifies 

who may serve process in district and county court actions, while rules 105 through 107 specify the 

duties of a person serving such process. See TEX. R. CIV. P. 103,105-107; see also P & H Transp., 

Inc. v. Robinson, 930 S.W.2d 857, 859 (Tex. Civ. App.-Houston [ 1st Dist.] 1996, writ denied) 

(“Rule 103 simply addresses who may serve; rule 106 addresses the method of service . . . .“). 

Similarly, rule 536(a) establishes who may serve citations and other notices in justice court 

proceedings generally, while rules 536(b)-(c) and 536a describe methods for such service. See TEX. 

R. CIV. P. 536, 536a. But those rules specifying how process may be served expressly refer to 

service by “the officer or authorized person.” See, e.g., TEX. R. CIV. P. 105,107,536a. By contrast, 

rules 742 and 742a refer only to service by “the officer.” See TEX. R. CIV. P. 742-742a. In doing 

so, rules 742 and 742a govern not only how process must be served in eviction suits but also govern 

and limit who may serve such process. 

In your analysis, you rely heavily on Attorney General Opinion MW-452, in which this office 

resolved an inconsistency between past versions of rules 103 and 116, both of which addressed 

methods of service in district and county courts, by harmonizing them. See Tex. Att’y Gen. Op. No. 

MW-452 (1982) at 1-3. But eviction suits are unique proceedings governed by their own rules, 

which may, by design, deviate from other more general rules. Given their special nature, it is not 

necessary or appropriate to alter eviction-suit rules by “harmonizing them” with generally applicable 

but inconsistent rules. 

Finally, you contend that rules 106(b)(2) and 536(c)(2) permit justice courts to authorize 

private process servers to serve citations in eviction suits. See Request Letter, supra note 1, at 3. 

Rule 106(b)(2) permits a district or county court to authorize service “in any other manner that the 

affidavit or other evidence before the court shows will be reasonably effective to give the defendant 

notice of the suit.” TEX. R. CIV. P. 106(b)(2). Rule 536(c)(2) p rovides a justice court with parallel 

authority. See TEX. R. CIV. P. 536(c)(2). However, both rules permit a court to authorize service 

in “any other manner” only if service under a primary method prescribed elsewhere in the rule has 

been unsuccessful. See TEX. R. CIV. P. 106(b)(2) (court may authorize service in any other manner 

‘The Texas Supreme Court adopted rule 742a, which provides an alternate method for service in eviction suits, 

in 1982. See TEX. R. CIV. P. 742a. 
The Honorable Jo& R. Rodriguez - Page 6 (GA-01 12) 

only “[ulpon motion supported by affidavit. . . showing that service has been attempted under either 

(a>(l> or G-9(2) - * . but has not been successtil”), 536(c)(2) ( same). Because the authority granted 

to courts in rules 106(b)(2) and 536(c)(2) is contingent on failed service under other methods, those 

rules do not provide an independent basis for justice courts to authorize private process servers to 

serve process in eviction suits. Moreover, rule 742a provides a special alternate method of service 

in eviction actions (service by delivery to the premises) if the officer is unsuccessful in providing 

personal service under rule 742. See TEX. R. CIV. P. 742a. 

You suggest that there is no reason to restrict service of citations in eviction suits to 

“officers” when private individuals may serve process in other kinds of actions. Nonetheless, the 

Rules of Civil Procedure retain distinct provisions for service of process in eviction actions, which 

we cannot ignore. The Texas Supreme Court has spoken clearly on this point: “[W]e are not free 

to disregard [arule’s] plainlanguage.” Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911,915 (Tex. 

1992). Any revision of the rules must be left to the Texas Supreme Court’s rules revision process. 

See id. (“The Legislature has provided that notice be given before rules amendments become 

effective. In addition, this Court has structured the rules revision process to encourage advice and 

comment from the bench and bar, and from the public generally. Any revision . . . should be left to 

those processes.“); see also Lehmann v. Har-Con Corp., 39 S.W.3d 191,205 (Tex. 2001). 
The Honorable Jose R. Rodriguez - Page 7 (GA-01 12) 

SUMMARY 

A private process server is not authorized to serve citation in 

a forcible entry and detainer suit or a forcible detainer suit. 

BARRY R. MCBEE 

First Assistant Attorney General 

DON R. WILLETT 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Mary R. Crouter 

Assistant Attorney General, Opinion Committee