Social Media is for Cat Videos, Family Photos and…Serving Court Documents?
In an effort to keep Texas procedure in line with advancing technology and the ever growing use of social media in society, the Texas House of Representatives is considering H.B. 241, a bill that would allow substituted service of citations through a defendant’s social media presence.
Substituted service is not a new or novel concept in Texas, but using social media as an appropriate forum to accomplish substituted service is. Texas law and Rule 106 of the Texas Rules of Procedure have long allowed parties to use “service by publication” as a form of substituted service. This form of service has been recognized as a last resort when other methods have failed. In fact, under current law a party must conduct a diligent search for the defendant before a court will allow service by publication. Historically, this was accomplished by placing a small notice in the classified section of a local newspaper.
Proponents of H.B. 241 argue that substituted service via social media is a logical extension of the current rules, while opponents point to several issues that call into question the reliability of using social media. The arguments against H.B. 241 include:
- How do you verify that a particular social media profile actually belongs to the defendant;
- How do you verify that the defendant actually read the social media posting;
- How would the host of a social media platform be involved in the event of a dispute of whether service was perfected?
These questions, however, are not really new. The same issues exist under the current framework when a notice is listed in a local newspaper, i.e. there is no way to prove the defendant read the paper to see the notice or even reads it on a regular basis.
As written, H.B. 241 would require the Texas Supreme Court to adopt civil procedure rules to govern how and when courts would be permitted to allow service via social media. One thing that the proposed legislation does not change is the requirement of a party to diligently attempt service in person or via certified mail. Only when those methods fail could a party seek judicial approval to use social media – again, a measure of last resort.
If passed, the new rule would become effective for lawsuits filed on or after September 1, 2015. Until then we will have to wait and see if the Texas Legislature will acknowledge a growing fact of reality in the digital age – the trend of people obtaining information via online sources, especially social media.
It should be noted that a similar bill was introduced during the last legislative session, but did not pass.