AUSTIN, Texas (CN) — The Texas Supreme Court announced Monday that it will allow service of process in civil cases through social media or email if traditional methods of serving lawsuits in-person or through the mail fail.
The nine-member, all-Republican high court approved the proposed amendments to Rule 106 of the Texas Rules of Civil Procedure on August 21. Under the change, a plaintiff can serve a defendant “electronically by social media, email, or other technology” if face-to-face “personal service” or “substituted service” through certified or registered mail is unsuccessful. If a plaintiff declines to serve process electronically, he or she still has the option of performing substituted service by leaving a copy of the citation and petition with “anyone older than sixteen at the location” specified.
“In determining whether to permit electronic service of process, a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology,” the four-page order states.
The Texas Supreme Court has been expected to adopt the changes ever since the Texas Legislature enacted Senate Bill 891 last year. The law amended the Texas Civil Practice and Remedies Code to explicitly direct the high 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.”
The amendments will take effect on Dec. 31. The court is seeking public comment on the changes at firstname.lastname@example.org by Dec. 1 and could possibly change the amendments based on the responses.
Blake Hawthorne, the Texas Supreme Court’s Clerk of the Court, said the rule changes are made in consultation with the State Bar of Texas and the Supreme Court Advisory Committee.
“It is typically a long process with a lot of input,” he said.
The State Bar did not immediately respond to a request for comment on the amendments Monday.
State and federal courts have slowly warmed to the use of social media and email for substituted service in spite of the obvious due process concerns. In the New York state case of Baidoo v. Blood-Dzraku in 2015, a trial judge allowed a wife to serve divorce summons on her husband through a direct message to his Facebook account. She successfully argued it was necessary because she did not have a street address to conduct personal service face-to-face or substituted service by mail and that he was regularly on his Facebook account conversing with her.
“Under the circumstance presented here, service by Facebook, albeit novel and nontraditional, is the form of service that most comports with the constitutional standards of due process,” the opinion stated. “Not only is it reasonably calculated to provide defendant with notice that he is being sued for divorce, but every indication is that it will achieve what should be the goal of every method of service: actually delivering the summons to him.”
The Oklahoma Supreme Court was mindful of the importance of how often an account holder checks his or her social media messages when it rejected the use of substituted process on Facebook in 2014. The court ruled in In re Adoption of K.P.M.A. that a father’s parental rights could not be terminated because the mother did not use a more direct way of informing him she was pregnant with his child.
“Instead of contacting Father directly, Mother left him a message on Facebook, which is an unreliable method of communication if the accountholder does not check it regularly or have it configured in such a way as to provide notification of unread messages by some other means,” the majority opinion stated. “This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected. It is, rather, a mere gesture.”
The father in the case testified he first learned about the child’s existence seven days after its birth and that he did not know how old the mother’s message to him was when he saw it.