# Substituted service on a defendant who cannot be found Source: https://www.jhenrylaw.com/mechanism/substituted-service-rule-106/ Author: John P. Henry, John Henry & Associates, PLLC Reviewed: 2026-08-02 **Tex. R. Civ. P. 106(b), 109a** ## How do you serve a defendant in Texas who is evading service or cannot be located? Move for substituted service under Tex. R. Civ. P. 106(b). On a sworn affidavit stating the location where the defendant can probably be found and the specific attempts already made, the court may authorize service by leaving the citation with anyone over sixteen at that location, or in any other manner the affidavit shows will be reasonably effective. In a sixty-six-matter out-of-state collection program this was routine and it is where most defaults are won or lost. > Upon motion supported by a sworn statement listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted … the court may authorize service in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit. — Tex. R. Civ. P. 106(b) ## When it applies Any defendant who will not answer the door, a registered agent who has resigned, an entity whose registered office is a closed clinic, an individual who has moved out of state. It is the unglamorous predicate to every default judgment, and a defective affidavit here is the single most common reason a default is later set aside. ## How it is proved up 1. The process server’s affidavit must state the address and the specific attempts — dates, times, what was observed. “Diligent efforts were made” is not a fact and will not support the order. 2. Establish that the stated location is one where the defendant can probably be found, which is the finding the rule actually requires. 3. Ask for the specific alternate manner you want, and attach a proposed order that grants exactly that. 4. Serve strictly in the manner the order authorizes. Substituted service is strictly construed and there is no presumption of valid service on a default judgment. 5. Get the signed order into the file and the return on file for at least ten days before taking the default, per Tex. R. Civ. P. 107(h). ## What defeats it - A conclusory affidavit, which voids the order and everything built on it. - Service in a manner the order did not authorize. - A restricted-appearance or Craddock motion for new trial where the defendant shows he never got notice. - Nothing here cures a defendant with no assets — service gets you a judgment, not a recovery. ## Where I have used it Repeatedly in the United Biologics program, against out-of-state medical practices and their principals — motions and signed orders for substituted service and for service through the Secretary of State, then defaults, then post-judgment discovery and writs of execution. In United Biologics v. Santan Health Services, LLC, Cause No. 2016CV02672, Bexar County, an Arizona defendant was served on its amended petition and took a default judgment of $69,761.43 plus $20,101.70 in pre-judgment interest at 18% post-judgment. ## The order Default Judgment — United Biologics, LLC d/b/a United Allergy Services v. Santan Health Services, LLC, County Court at Law, Bexar County, Texas, Cause No. 2016CV02672, signed Signed 2016 — signature and file stamp on the copy in the file. ``` CAUSE NO. 2016CV02672 UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES, Plaintiff v. SANTAN HEALTH SERVICES, LLC, Defendant IN THE COUNTY COURT AT LAW BEXAR COUNTY, TEXAS DEFAULT JUDGMENT On ______, 201__, Plaintiff, UNITED BIOLOGICS, LLC d/b/a UNITED ALLERGY SERVICES moved for default judgment after Defendant SANTAN HEALTH SERVICES, LLC failed to file an answer in this case. At the hearing, Plaintiff appeared through its attorney. Defendant, SANTAN HEALTH SERVICES, LLC did not appear. The court determined that it had jurisdiction over the subject matter and the parties in this proceeding. After considering the pleadings, the papers on file in this case, and the evidence Plaintiff presented on liability and damages, the court GRANTS Plaintiff’s motion for default judgment. The court hereby RENDERS judgment for Plaintiff. Therefore, the Court ORDERS that Plaintiff recover damages from Defendant SANTAN HEALTH SERVICES, LLC in the sum of $69,761.43, pre-judgment interest in the sum of $20,101.70 and post-judgment interest on the total sum at the annual rate of 18%, attorney fees of $1,500.00, and court costs. The court finds the following: 1. Defendant was served with citation and a copy of Plaintiff’s First Amended Petition on September 15, 2016. 2. The citation and proof of service were on file with this court for at least ten days before the judgment was rendered. 3. The deadline for Defendant to file an answer was October 10, 2016. Defendant was required to file an answer the following Monday after 20 days from the date of service of citation and Plaintiff’s amended petition; however, Defendant did not file an answer or any other pleading constituting an answer. 4. Defendant’s last known address is 2181 East Pecos Road, Suite 1, Chandler, Arizona 85225. 5. The damages claimed in Plaintiff’s First Amended Petition were proven by the affidavits and other evidence presented by Plaintiff. 6. This judgment disposes of all claims and all parties and is appealable. SIGNED ON ______________________ _______________________________ PRESIDING JUDGE ``` ## Questions **What does Rule 106(b) require in the affidavit?** A sworn statement listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted at that location but was unsuccessful. Conclusory statements of diligence are insufficient. **Can you serve someone by email or social media in Texas?** Rule 106(b) permits service in any other manner, including electronically by social media, email or other technology, that the evidence shows will be reasonably effective to give the defendant notice. **Why do default judgments get set aside for bad service?** There are no presumptions in favor of valid issuance, service and return of citation when a default judgment is directly attacked. Strict compliance with the rules and with the substituted-service order must appear on the face of the record. --- This page is an advertisement. Case results depend on the specific facts of each matter and do not predict a similar result in any other. Nothing here is legal advice.