# The Attorney General of Texas December 28, 1978 JOHN L.HILL Attorney General
Honorable Joe Resweber County Attorney for Harris County 1001Preston Houston, Texas 77002 Opinion No. H-1315 Re: Service ofprocess inforcible entry and detalner suits Dear Mr.Resweber: You have requested our opinion regarding the service ofprocess in a forcible entry and detainer suit. Youhave 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 isnot aprivy of the plaintiff? The procedure to be followed in forcible entry and detahier suits (FED) isthat set out inRules 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, 354S.W.2d 368(Tex. 1962). Citation isserved pursuant to Rule 742which 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 ofabode, 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 whoissued the same. Amended byorder of Aug. 18,1947,effective Dec. 31,1947.

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There is noprovision in the Rules relating to FED suits allowing substitute service as isprovided by Rules 106and 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 bypublication. Rule 523provides that

AR rules governing the district and county courts [which includes Rules 106and 1091shall also govern the justice courts, insofar as they can be applied, except where otherwise specifically provided bylaw or these rules. Webelieve that service of process under Rule 106or 109is 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 FEDsuits) You’next ask whether the officer isunder a duty to determine whether the person served with process isaprivy or agent of the plaintiff inthe FED action. Webelieve 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). Webelieve that the substitute service on someone over the age of sixteen isvalid 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, 311U.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, 313S.W.2d 121(Tex. Civ. App. - Dallas 1958,writ ref’d, n.r.e.). Service on an agent of the plaintiff isprobably 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 isa manner not reasonably calculated to give the defendant actual notice of the suit. SUMMARY

Service ofprocess 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

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APPROVED:

Opinion Committee

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