August 21, 2020

On August 21, 2020, the Supreme Court of Texas approved an amendment to Rule 106 of the Texas Rules of Civil Procedure to allow substituted service through social media. (Order # 20-9103 is available here). The Court is accepting public comments regarding the proposed amendment by December 1, 2020.

For the first time, the proposed amended Rule 106 includes substituted service “electronically by social media, email, or other technology…” See Order # 20-9103, page 3 (noting amendment to Tex. R. Civ. P. 106(b)(2)). The amended rule retains the Rule 106 requirement that the movant demonstrate that such proposed service “will be reasonably effective to give the defendant notice of the suit.” See Order # 20-9103, page 3.

In today’s world, a growing number of litigants frequent social media both for business and personal use. This amendment provides an additional avenue for those pursuing substituted service of process on parties for which prior service attempts have been unsuccessful. 

If the Court adopts the proposed rule change, it will be critical to see what evidence Texas courts deem sufficient to establish that proposed service by social media will be reasonably effective to give defendant notice of suit. Perhaps foreseeing challenges in making such a showing in the social media space, the Comment to the Rule 106 change states that “[i]n determining whether to permit electronic service of process, a court should consider whether the [social media account] actually belongs to the defendant and whether the defendant regularly uses or recently used the technology.” See Order # 20-9103, page 3.

Those familiar with social media will note the difficulty at times in determining whether social media profiles actually belong to the stated individual, and whether the social media profile is indeed active. Given the language of the proposed rule change, recent activity on social media pages such as photo uploads, location tags, or other posts may evidence that “the technology actually belongs to” and was “recently used” by the defendant. It is unknown, however, how different courts will analyze such evidence, especially given the wide range of social media experience between Texas Judges, lawyers, and litigants.

Similar difficulties may arise in determining whether defendants have recently used or are using email or other technology. While it may be easier to identify a defendant’s email address, it may prove to be a more difficult task establishing that an email address belongs to and was recently used by a defendant, in a manner sufficient to warrant substituted service. Regardless, assuming the rule change takes effect as planned, it will be interesting to see how the Texas judiciary receives and evaluates such evidence. 

Assuming that the amendment is not changed, the new Rule 106 will take effect on December 31, 2020.


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