On August 21, 2020, the Texas Supreme Court announced an amendment to Texas Rule of Civil Procedure 106 that authorizes courts in Texas to order substituted electronic service of process via “social media, email, or other electronic technology.” This move responds to Tex. Civ. Prac. & Rem. Code § 17.033, which called for the update to the rule. This change explicitly allows what a handful of courts throughout the country have permitted under catch-all substituted service provisions.
The amended rule will take effect on December 31, 2020. However, the amendments may be revised in response to public comments. Written comments should be submitted by December 1, 2020 to rulescomments@txcourts.gov.
The rule change does not disturb the primary and even secondary preferred methods of service— personal service or service via registered or certified mail. A comment to the amended Rule 106 instructs that “a court should consider whether the technology actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.” The Supreme Court did not offer additional guidance about what social media platforms or technology may be utilized for alternative service.
A Few Courts Have Previously Considered Service by Social Media
Courts in New York have been particularly receptive to requests for alternative service via social media. One opinion in particular provides some insight into how Texas courts might go about determining whether service on Facebook, LinkedIn, or Twitter, for example, would be appropriate. In Baidoo v. Blood-Dzraku, 48 Misc. 3d 309, 5 N.Y.S.3d 709 (N.Y. Sup. Ct. 2015), the New York Supreme Court authorized service through Facebook where the plaintiff was unable to effect service on her ex-husband through ordinary methods of service and demonstrated to the court that service through social media was reasonably calculated actually to reach the defendant. She established that she had actually been in contact with the defendant through the proposed social media account and that the account was recently active.
In another case, Federal Trade Commission v. PCCare247 Inc., Case No. 12 Civ. 7189 (PAE), 2013 WL 841037 (S.D.N.Y. March 7, 2013), the Southern District of New York authorized service on defendants who were in India via both Facebook and email after the plaintiff was unable to effect service through traditional methods, including those authorized by the Hague Convention. Important in the court’s analysis...
