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Amended Service Rules
ADVOCATE WINTER 2005
81
AMENDED SERVICE RULES
BY BRUCE A. ATKINS
The following is a supplement to Mr. Atkins' PREJUDGMENT REMEDIES article, which appeared in the Fall 2005 Advocate.
FINAL APPROVAL OF AMENDMENTS to Rules 103 and 536(a) of the Texas Rules of Civil Procedure,1 signed and entered June 29, 2005, effective July 1, 2005, was issued after the submission deadline for the Fall Edition of The Advocate. The Amendments affect articles in the Fall Edition on Prejudgment Remedies and Post Judgment Remedies concerning service of writs by certified private process servers. This commentary supplements those articles and does not address the broader application or implication of the amended rules.
In material part, the amended rules provide that process, including citation and other notices, writs, orders, and other papers issued by the court, may be served anywhere by (1) any sheriff, constable, or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court. However, unless otherwise authorized by a written court order, only a sheriff or constable may serve a writ that requires the actual taking of possession of property or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process.2 The official Comments to the amended Rules observe that a court should authorize a certified process server to serve such process only in rare circumstances.3 The amendments do not describe or give examples of rare circumstances.
The amendments supersede Lawyers Civil Process, Inc. v. State ex rel. Vines, 690 S.W.939, 944 (Tex. App. - Dallas 1985) to the extent that it prohibited private process servers from executing writs of attachment, sequestration, garnishment and distress warrants, finding that only a sheriff or constable may execute those writs. The amendments do not disturb Lawyers Civil Process, Inc. to the extent that it permits certified private process servers to serve notices of writs under Rule 21a.4
As applied to prejudgment remedies, the amended rules have the following apparent effect. A certified process server may serve a prejudgment writ of garnishment. No written court order is required to authorize or empower a certified process server to serve a prejudgment writ of garnishment.5 However, until the matter is considered by the courts, it would be safer to continue using a sheriff or constable to serve a prejudgment writ of garnishment or to get a written court order authorizing a certified private process server to serve the writ. A certified process server may serve a writ of sequestration or a writ of attachment only when authorized by a written court order.6
Certification of Persons Authorized to Serve Process Under Rules 103 and 536(a) (Amended),9 signed and entered June 29, 2005, effective July 1, 2005, establishes application procedures, duration of certification, standards for certification and authority of certified private process servers. As to service of process, this Order provides that a person shown to have met certification standards already in place in Dallas County, Denton County, or Harris County is considered to have been certified under the order if the person had complied with the order its effective date. It provides further that persons meeting the Harris County requirements will be certified to serve for all Texas courts; and that persons meeting the requirements set for Dallas and Denton counties will be certified to serve all courts except for courts in Harris County.10