The Attorney General of Texas 

December 28, 1978 

JOHN L. HILL 

Attorney General 

Honorable Joe Resweber 

County Attorney for Harris County 

1001 Preston 

Houston, Texas 77002 

Opinion No. H-1315 

Re: Service of process 

in forcible entry and detalner 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. 

S.W.2d 368%x. 

Meyers, 311 U.S. 457 (1940); Sessions v: Price Drilling Co., 337 

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