Texas Rules Now Allow Substitute Service Via Social Media

The global pandemic of coronavirus has changed the face of law practice today. With the need for social distancing, parties, attorneys and judges alike have all become accustomed to holding hearings, depositions, and other legal proceedings via video conferencing. And as technology continues to shape the practice of law, the Texas Rules of Civil Procedure now allows for substitute service on a defendant via social media.

Via legislative mandate, SB 891 (2010) and TCPRC § 17.033c-if substituted service of citation is authorized under the Texas Rules of Civil Procedure, the court, in accordance with the rules adopted by the supreme court under subsection (b), may prescribe electronic communication sent to the defendant through a social media presence as a method of service.

In order to ensure that the service is effective, attorneys that intend to serve defendants via social media must be ready to muster evidence to demonstrate and prove that the social media account is a legitimate means of serving the defendant. Generally, this requires that the attorney show, among other things, that: the account is authentic; the account actually belongs to the defendant in question; the “age” of the profile is appropriate; there is a sufficient amount of posts or history of posting that would support a finding of authenticity; there have been instances of direct communication with the owner of the account; and there is evidence to demonstrate that the defendant indeed received the requisite documents via the social media account.

Moreover, it is important to note that while some defendants may be responsible for managing the social media accounts at their place of work, this does not mean that the account they manage constitutes a viable account to serve them on. Thus, attorneys should distinguish between accounts that defendants are active on but do not “own” in contrast to personal accounts that defendants do “own” and could thus be used for service.

In the end, the biggest takeaway for attorneys is that they must be ready and willing to offer the necessary evidence to demonstrate that the social media account they intend to serve is the proper account for the defendant and said account is active. Attorneys should also understand that service through social media is for substitute service only.

The Texas Rules of Civil Procedure have expanded alternate means for substitute service to include service via social media. In order to successfully serve a defendant via social media, counsel must be prepared to submit evidence that shows:

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