Waiver of Service in Texas

What Is a Waiver of Service?

Background

In general, jurisdiction over a party is acquired by voluntary appearance, service of process as provided by law, or waiver of service. (Whatley v. Walker (2010) 302 S.W.3d 314, 321 citing Tex. R. Civ. P. 124 [“In no case shall judgment be rendered against any defendant unless upon service, or acceptance or waiver of process, or upon an appearance by the defendant, as prescribed in these rules, except where otherwise expressly provided by law or these rules.”); Werner v. Colwell (1995) 909 S.W.2d 866, 869-70.)

Tex.R.Civ.P. 119 governs waiver of service and requires that party waiving service acknowledge receipt of the petition and show execution after suit filed. (Id.)

“Constructive or even actual notice is not enough when service of citation is required. (See Wilson v. Dunn (1990) 800 S.W.2d 833, 836 [actual receipt of process insufficient to support default when service was defective.”] Wojcik v. Wesolick (2003) 97 S.W.3d 335, 340-41.)

A general appearance in [a] case is [also] a waiver of service of process. (Whatley v. Walker (2010) 302 S.W.3d 314, 322 citing Tex.R. Civ. P. 121 [stating that an answer shall constitute an appearance “so as to dispense with the necessity for the issuance or service of citation”]; Adcock v. Sherling (1996) 923 S.W.2d 74, 79.)

How to Structure the Waiver

With regard to “the date of service of the legal action,” Rule 119 of the Texas Rules of Civil Procedure states:

“The defendant may accept service of process, or waive the issuance of service thereof by a written memorandum signed by him, or by his duly authorized agent or attorney, after suit is brought, sworn to before a proper officer other than an attorney in the case, and filed among the papers of the cause, and such waiver or acceptance shall have the same force and effect as if the citation had been issued and served as provided by law ....”

(Grant v. Pivot Tech. Sols., Ltd. (2018) 556 S.W.3d 865, 885 Tex. R. Civ. P. 119.)

“Rule 119 provides the sole method for establishing a valid acceptance or waiver of service of process prior to a voluntary appearance by a defendant, presumably to prevent the kind of factual disputes concerning acceptance or waiver of service presented [to courts.]” (See, e.g., Grant v. Pivot Tech. Sols., Ltd. (2018) 556 S.W.3d 865, 886 [stating that “waiver or acceptance [in compliance with Rule 119 ] shall have the same force and effect as if the citation had been issued and served as provided by law”]; Spivey v. Holloway (1995) 902 S.W.2d 46, 48 [noting that “[a]n appearance constitutes a waiver of service.”])

The Court’s Decision

A waiver of service must be executed under strict compliance with Rule 119. (Macs v. Lenahan (2018) No. 04-17-00033-CV, at *5 [holding that the unsworn Rule 11 agreement in the case was not in strict compliance with Rule 119 and could not serve as a valid waiver of citation or cure the defects in the service of process upon appellants.])

“A written recitation that the acceptance of service meets all requirements of Rule 119 satisfies the requirement of a written memorandum.” (Approximately $58,641.00 v. State (2011) 331 S.W.3d 579, 583.)

Documents for Waiver of Service in Texas

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In the Matter of the Marriage of: Kylie Ann Hinson and JOSHUA DEAN HINSON document preview

Status Conference Sheet - GAC to Petitioner-PG

4 pages

NOTICE OF STATUS CONFERENCE FOR FAMILY CASES Cause # 24-FD-0907 Status Conference 08/07/2024 at 1:00 p.m. Court: XXX 306th Judicial District Court County Court at Law No. 1 County Court at Law No. 2 County Court at Law No. 3 If your case is not resolved prior to the scheduled status conference date, refer…

Case Name In the Matter of the Marriage of: Kylie Ann Hinson and JOSHUA DEAN HINSON