While service by social media has had (and still has) its naysayers, it is about to be the law in Texas. The Texas Supreme Court has approved an amendment to the Texas Rules of Civil Procedure that will allow substituted service of a lawsuit to be served “electronically by social media, email, or other technology” that will be “reasonably effective to give the defendant notice of the suit.”
This rule came in response to SB891 of the 2019 Texas Legislature, signed into law by Govern Abbott last June. That law required the Texas Supreme Court to adopt “rules to provide for the substituted service of citation by an electronic communication sent to a defendant through a social media presence.”
Under the new Rule, electronic service will not be allowed until personal service or certified mail has failed. A court will also need to approve the substituted service. A comment to the rule change indicates that in deciding whether to allow a defendant to be served electronically, the court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology. The latter requirements help address a concern inherent in not serving a defendant in person – did the defendant really get the notice? While it is certainly not full proof, the Texas Legislature recognized that service by social media in this day and age is more likely to give a defendant notice of a lawsuit than other, older forms of substituted service such as printing the notice in the newspaper.
Time will tell how this new procedure will affect our civil justice system. The amended rule goes into effect December 1, 2020.
The Texas Association of Defense Counsel has written a letter to the Texas Supreme Court outlining potential issues with the proposed rule. This letter can be found here. Underwood Shareholder, Slater C. Elza, is the current President of the TADC.
By Jennie Knapp