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Civil Practice & Remedies Code - CHAPTER 17

CHAPTER 17. PARTIES; CITATION; LONG–ARM JURISDICTION

SUBCHAPTER A. PARTIES TO SUIT

§ 17.001. Suit on Contract With Several Obligors or Parties Conditionally Liable

     (a) Except as provided by this section, the acceptor of a bill of exchange or a principal obligor on a contract may be sued alone or jointly with another liable party, but a judgment may not be rendered against a party not primarily liable unless judgment is also rendered against the principal obligor.

     (b) The assignor, endorser, guarantor, or surety on a contract or the drawer of an accepted bill may be sued without suing the maker, acceptor, or other principal obligor, or a suit against the principal obligor may be discontinued, if the principal obligor:

     (1) is a nonresident or resides in a place where he cannot be reached by the ordinary process of law;

     (2) resides in a place that is unknown and cannot be ascertained by the use of reasonable diligence;

     (3) is dead; or

     (4) is actually or notoriously insolvent.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.002. Suit Against Estate For Land Title

     In a suit against the estate of a decedent involving the title to real property, the executor or administrator, if any, and the heirs must be made parties defendant.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.003. Suit Against Nonresident or Transient Property Owner

     For the purpose of establishing title to property, settling a lien or encumbrance on property, or determining an estate, interest, lien, or encumbrance, a person who claims an interest in the property may sue another person who claims an adverse interest or a lien or encumbrance but resides outside this state, resides in an unknown place, or is a transient. The plaintiff is not required to have actual possession of the property.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.004. Suit Against Unknown Heirs or Unknown Stockholders of Defunct Corporation

     A person with a claim against property that has accrued to or been granted to the unknown heirs of a deceased individual or the unknown stockholders of a defunct corporation may sue the heirs or stockholders or their heirs or representatives. The action must describe the defendants as the heirs of the named deceased individual or the unknown stockholders of the named corporation.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.005. Suit Against Unknown Landowner

     (a) A person may sue the unknown owner or claimant of an interest in land if:

     (1) the person bringing suit claims ownership of an interest in the land or has a claim or cause of action related to the land against the unknown owner or claimant; and

     (2) the unknown owner or claimant:

     (A) takes or holds the beneficial interest under a conveyance, lease, or written contract that conveyed an interest in the land to a trustee without disclosing the name of the owner of the beneficial interest; or

     (B) takes or holds the interest of a dissolved association, joint-stock company, partnership, or other organization under an instrument that did not disclose his name, and the organization had acquired the interest under a conveyance, lease, or written contract that conveyed the interest to the organization in its name without disclosing the names of the members, shareholders, partners, or other persons owning an interest in the organization.

     (b) A person may not sue the unknown stockholders of a corporation under this section, but if the plaintiff did not know that the organization was incorporated and the corporate character of the organization was not disclosed in the instrument under which title was acquired, the court retains jurisdiction over the unknown owners even if the organization was in fact incorporated.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

SUBCHAPTER B. CITATION GENERALLY

§ 17.021. Service on Certain Noncorporate Business Agents

     (a) In an action against an individual, partnership, or unincorporated association that arises in a county in which the individual, partnership, or association has an office, place of business, or agency for transacting business in this state, citation or other civil process may be served on an agent or clerk employed in the office, place of business, or agency if:

     (1) the action grows out of or is connected with the business transacted in this state; and

     (2) the individual, partnership, or association:

     (A) is not a resident of the county;

     (B) is not a resident of this state; or

     (C) is a resident of the county but has not been found for service of process.

     (b) To serve process on an agent or clerk under Subsection (a)(2)(C), the officer making the return of unexecuted process must certify that after diligent search and inquiry the individual, partnership, or association cannot be found and served. The process in the suit may be served on the agent or clerk in any succeeding term of court.

     (c) Service of process on an agent or clerk under this section has the effect of personal service on the principal individual, partnership, or unincorporated association and subjects the principal's nonexempt property to the jurisdiction and judgment of the court.

     (d) If service is made under this section, a default judgment may not be rendered in the action before the 21st day after the date of service.

     (e) Service of process under this section is in addition to other methods of service.

     (f) This section does not affect venue.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.022. Service on Partnership

     Citation served on one member of a partnership authorizes a judgment against the partnership and the partner actually served.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.023. Service on Joint-Stock Association

     (a) In an action against a joint-stock association, citation may be served by:

     (1) serving the president, vice-president, secretary, cashier, assistant cashier, or treasurer of the association;

     (2) serving the local agent of the association in the county in which the suit is brought; or

     (3) leaving a copy of the citation at the principal office of the association during office hours.

     (b) If no officer on whom citation may be served resides in the county in which suit is brought and the association has no agent in that county, citation may be served on any agent representing the association in this state.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 288, § 1, eff. Aug. 31, 1987.

§ 17.024. Service on Political Subdivision

     (a) In a suit against a county, citation must be served on the county judge.

     (b) In a suit against an incorporated city, town, or village, citation may be served on the mayor, clerk, secretary, or treasurer.

     (c) In a suit against a school district, citation may be served on the president of the school board or on the superintendent.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.025. Assessment of Postage Cost For Mail Service

     (a) If a public official is required or permitted by law to serve legal process by mail, including process in a suit for delinquent taxes, the official may:

     (1) collect advance payment for the actual cost of the postage required to serve or deliver the process; or

     (2) assess the expense of postage as costs.

     (b) Charges under this section are in addition to other charges allowed by law for services performed by the official serving the process.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.026. Service on Secretary of State

     (a) In an action in which citation may be served on the secretary of state, service may be made by certified mail, return receipt requested, by the clerk of the court in which the case is pending or by the party or the representative of the party.

     (b) The method of service of citation provided by this section is in addition to any other method authorized by statute or the Texas Rules of Civil Procedure for service on the secretary of state.

Added by Acts 1987, 70th Leg., ch. 954, § 1, eff. Sept. 1, 1987.

§ 17.027. Preparation and Service

     (a) The plaintiff or his attorney may prepare the appropriate citation for the defendant.

     (b) The citation must be in the form prescribed by the Texas Rules of Civil Procedure.

     (c) The citation shall be served in the manner prescribed by law.

     (d) The plaintiff or his attorney shall comply with the applicable Texas Rules of Civil Procedure governing preparation and issuance of citation.

     (e) Repealed by Acts 1997, 75th Leg., ch. 976, § 5, eff. Sept. 1, 1997.

Added by Acts 1987, 70th Leg., ch. 663, § 1, eff. Sept. 1, 1987.

Amended by Acts 1997, 75th Leg., ch. 976, § 5, eff. Sept. 1, 1997.

SUBCHAPTER C. LONG–ARM JURISDICTION IN SUIT ON BUSINESS TRANSACTION OR TORT

§ 17.041. Definition

     In this subchapter, "nonresident" includes:

     (1) an individual who is not a resident of this state; and

     (2) a foreign corporation, joint-stock company, association, or partnership.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.042. Acts Constituting Business in This State

     In addition to other acts that may constitute doing business, a nonresident does business in this state if the nonresident:

     (1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state;

     (2) commits a tort in whole or in part in this state; or

     (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.043. Service on Person in Charge of Business

     In an action arising from a nonresident's business in this state, process may be served on the person in charge, at the time of service, of any business in which the nonresident is engaged in this state if the nonresident is not required by statute to designate or maintain a resident agent for service of process.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.044. Substituted Service on Secretary of State

     (a) The secretary of state is an agent for service of process or complaint on a nonresident who:

     (1) is required by statute to designate or maintain a resident agent or engages in business in this state, but has not designated or maintained a resident agent for service of process;

     (2) has one or more resident agents for service of process, but two unsuccessful attempts have been made on different business days to serve each agent; or

     (3) is not required to designate an agent for service in this state, but becomes a nonresident after a cause of action arises in this state but before the cause is matured by suit in a court of competent jurisdiction.

     (b) The secretary of state is an agent for service of process on a nonresident who engages in business in this state, but does not maintain a regular place of business in this state or a designated agent for service of process, in any proceeding that arises out of the business done in this state and to which the nonresident is a party.

     (c) After the death of a nonresident for whom the secretary of state is an agent for service of process under this section, the secretary of state is an agent for service of process on a nonresident administrator, executor, or personal representative of the nonresident. If an administrator, executor, or personal representative for the estate of the deceased nonresident is not appointed, the secretary of state is an agent for service of process on an heir, as determined by the law of the foreign jurisdiction, of the deceased nonresident.

     (d) If a nonresident for whom the secretary of state is an agent for service of process under this section is judged incompetent by a court of competent jurisdiction, the secretary of state is an agent for service of process on a guardian or personal representative of the nonresident.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 158, § 1, eff. May 25, 1987.

§ 17.045. Notice to Nonresident

     (a) If the secretary of state is served with duplicate copies of process for a nonresident, he shall require a statement of the name and address of the nonresident's home or home office and shall immediately mail a copy of the process to the nonresident.

     (b) If the secretary of state is served with process under Section 17.044(a)(3), he shall immediately mail a copy of the process to the nonresident (if an individual), to the person in charge of the nonresident's business, or to a corporate officer (if the nonresident is a corporation).

     (c) If the person in charge of a nonresident's business is served with process under Section 17.043, a copy of the process and notice of the service must be immediately mailed to the nonresident or the nonresident's principal place of business.

     (d) The process or notice must be sent by registered mail or by certified mail, return receipt requested.

     (e) If the secretary of state is served with duplicate copies of process as an agent for a person who is a nonresident administrator, executor, heir, guardian, or personal representative of a nonresident, the secretary shall require a statement of the person's name and address and shall immediately mail a copy of the process to the person.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 158, § 2, eff. May 25, 1987.

SUBCHAPTER D. LONG–ARM JURISDICTION OVER NONRESIDENT MOTOR VEHICLE OPERATOR

§ 17.061. Definitions

     In this subchapter:

     (1) "Agent" includes a servant, employee, heir, legal representative, executor, administrator, or guardian.

     (2) "Chairman" means the chairman of the Texas Transportation Commission.

     (3) "Motor vehicle" includes a motorcycle.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 165, § 22(23), eff. Sept. 1, 1995.

§ 17.062. Substituted Service on Chairman of Texas Transportation Commission

     (a) The chairman of the Texas Transportation Commission is an agent for service of process on a person who is a nonresident or an agent of a nonresident in any suit against the person or agent that grows out of a collision or accident in which the person or his agent is involved while operating a motor vehicle in this state.

     (b) Process may be served on the chairman in accordance with this section for a nonresident who was a resident at the time the cause of action accrued but has subsequently moved from the state.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 165, § 22(24), eff. Sept. 1, 1995.

§ 17.063. Method of Service; Notice to Nonresident

     (a) A certified copy of the process must be served on the chairman not later than the 20th day prior to the date of return stated in the process.

     (b) Immediately after being served, the chairman by properly addressed letter shall mail to the nonresident or agent:

     (1) a copy of the process; and

     (2) notice that the process has been served on the chairman.

     (c) The notice and copy of the process must be sent to the nonresident or agent by registered mail, or by certified mail, return receipt requested, with the postage prepaid.

     (d) After the chairman deposits the copy of the process in the mail, it is presumed that the process was transmitted by the chairman and received by the nonresident or agent. The presumption may be rebutted.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.064. Same Effect as Personal Service

     Service on the chairman has the same effect as personal service on the nonresident.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.065. Failed Substituted Service

     (a) If the notice of service on the chairman cannot be effected by registered or certified mail or if the nonresident or agent refuses to accept delivery of the notice, the plaintiff may have the defendant personally served with a certified copy of the process and a notice stating that the chairman has been served and the date on which he was served.

     (b) The return of service under this section shall be endorsed on or attached to the original process issued and must:

     (1) state when it was served;

     (2) state on whom it was served; and

     (3) be signed and sworn to by the party making the service before a person authorized by law to make an affidavit under his hand and seal.

     (c) The process and notice may be served by any disinterested person competent to make an oath that the process and notice were served.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.066. Return

     An officer who serves process on the chairman under this subchapter shall state on his return the day and hour of service and any other facts required generally for returns of service of citation.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.067. Default Judgment

     If process is served on the chairman under this subchapter, a court may not grant default judgment against the defendant before the 21st day after the day on which the chairman was served.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.068. Continuance or Postponement

     A court may continue or postpone an action in which process is served under this subchapter as necessary to afford the defendant reasonable opportunity to defend.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.069. Chairman's Certificate

     (a) On request of any party and payment of a $25 fee, the chairman shall certify the occurrence or performance of any duty, act, omission, transaction, or happening contemplated or required by this subchapter, including the wording of any registered letter received.

     (b) The chairman may make the certification to the court that issued the process or to another court in which an action is pending against the nonresident or agent.

     (c) The chairman's certificate and the certified wording of a registered letter are prima facie evidence of the statements contained in the certificate or letter.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

SUBCHAPTER E. CITATION OF NONRESIDENTS—MISCELLANEOUS PROVISIONS

§ 17.091. Substituted Service in Delinquent Tax Cases

     (a) In a suit growing out of property taxation by the state or a legal subdivision of the state in which a person who is a defendant is a nonresident, the secretary of state is an agent for service of process on that defendant if the defendant owned, had, or claimed a taxable interest in property in this state on the first day of a tax year for which taxes have not been paid.

     (b) Process may be served on the secretary of state in accordance with this section for a nonresident who was a resident at the time the cause of action accrued but has subsequently moved.

     (c) Service of process under this section shall be made in the manner provided by this chapter for substituted service on nonresident motor vehicle operators, except that a copy of the process must be mailed by certified mail.

     (d) Service under this section is in addition to procedures provided by Rule 117a of the Texas Rules of Civil Procedure and has the same effect as personal service.

     (e) Service of process on the secretary of state under this section must be accompanied by the fee provided by Section 405.031(a), Government Code, for the maintenance by the secretary of state of a record of the service of process.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 384, § 14, eff. Sept. 1, 1989; Acts 1991, 72nd Leg., 2nd C.S., ch. 6, § 60, eff. Sept. 1, 1991; Acts 1995, 74th Leg., ch. 579, § 1, eff. Jan. 1, 1996.

Amended by Acts 1997, 75th Leg., ch. 948, § 5, eff. Sept. 1, 1997.

§ 17.092. Service on Nonresident Utility Supplier

     A nonresident individual or partnership that supplies gas, water, electricity, or other public utility service to a city, town, or village in this state may be served citation by serving the local agent, representative, superintendent, or person in charge of the nonresident's business.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

§ 17.093. Service on Foreign Railway

     In addition to other methods of service provided by law, process may be served on a foreign railway by serving:

     (1) a train conductor who:

     (A) handles trains for two or more railway corporations, at least one of which is the foreign corporation and at least one of which is a domestic corporation; and

     (B) handles trains for the railway corporations over tracks that cross the state's boundary and on tracks of a domestic corporation within this state; or

     (2) an agent who:

     (A) has an office in this state; and

     (B) sells tickets or makes contracts for the transportation of passengers or property over all or part of the line of the foreign railway.

Acts 1985, 69th Leg., ch. 959, § 1, eff. Sept. 1, 1985.

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