The Texas Supreme Court has announced a rule change to permit courts to authorize electronic service of a summons and complaint when traditional efforts to serve have been unsuccessful. Before approving electronic service, a court must consider if evidence shows the defendant uses a social media profile frequently enough that it would be “reasonably effective” to give them notice of the suit.
The comment to the new rule says as follows:
Amended Rule 106(b)(2) clarifies that a court may, in proper circumstances, permit service of citation electronically by social media, email, or other technology. 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. Other clarifying and stylistic changes have been made.
The new rule will take effect on December 31, 2020. While I applaud the effort of the Texas court to embrace technology in the civil justice system, it is reasonable to expect that there will be a Due Process challenge to this rule. “[S]ervice of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served.” Omni Capital Intern., Ltd. v. Rudolf Wolff & Co., Ltd. 484 U.S. 97, 104, 108 S.Ct. 404, 409 (U.S.1987). That said, “the essential element of due process of law is an opportunity to be heard, and a necessary condition of such opportunity is notice…But personal notice is not in all cases necessary…There may be, and necessarily must be, some form of constructive service.”Jacob v. Roberts, 223 U.S. 261, 265, 32 S.Ct. 303, 305 (U.S.1912). Will service by Facebook be the 21st Century’s form of constructive service?