Update to Rules Regarding Citation of Service by Publication

In May 2019, we drafted a Legal Update titled When and How to Use Service of Citation by Publication in Texas SIJS Cases explaining in detail the ins and out of the process of citation by publication in Texas.  That post is one of our most frequently visited pages on our website.   In 2019, the Texas Legislature passed a bill requiring changes to the citation by publication process and on July 1, 2020 those rules became effective.  Below, we have revised our previous legal update to incorporate the changes in law.

**This post was updated Jan. 8. 2021 with additional information about the PIIW fees and posting responsibilities.

We have heard from many of you with questions about what to do when your client is unable to obtain service for a suit affecting the parent-child relationship (SAPCR) because the identity or location of the Respondent is unknown.  Citation by publication is a form of service where an advertisement is placed in a local newspaper and/or a public website to give notice to a Respondent that their rights are at stake.   Citation by publication is a last resort in custody suits and should only be used after diligent efforts to locate the party subject to the suit.  See Tex. R. Civ. Proc. 109; see also In re E.R., 385 S.W.3d 552, 555 (Tex. 2012)(citation by publication was unjustifiable in termination suit where state knew the mother’s identity, was in regular contact with her, and had at least one in-person meeting with her after it sued to terminate the legal rights to her children).   After citation by publication is issued and no answer or appearance is made by the unknown party, the court is required to appoint an attorney ad litem for the unknown or missing parent.  Tex. R. Civ. Proc.  244.  This post walks you step-by-step through the process.

Step One:  How do I know when is service of citation by publication appropriate? [Hint: only as a last resort]

We highly recommend that the attorney gather as much information as possible about the identification and whereabouts of the Respondent. Ask the same questions of your client that an attorney ad litem will ask her later in the suit, and which will be required in the affidavit to obtain citation of service by publication such as:

  • What is the full name of the Respondent? Have they used other names?
  • Are you able to locate Respondent? Have you tried? Why not? Who can locate them?
  • When was the last time you saw Respondent? Communicated with Respondent? Communicated with the Respondent’s family? Mutual friends?
  • Where (including what country) does Respondent live? Live the last time you saw them?  Lived in the past?
  • Does Respondent have a social media page? Are you connected to Respondent on social media?

As an attorney, you can also do your own research to attempt to find the Respondent.  Here are some suggestions:

  • Contact relatives and former employers for a current or last known address or telephone number
  • Interview neighbors and friends for last known whereabouts
  • Mail letters to last known address in an attempt to obtain forwarding address
  • Check social media websites
  • Conduct a general internet search
  • There are also many U.S. databases that you can search to show due diligence even if the last known whereabouts of the Respondent are in another country (census, assumed name, credit agencies, death and marriage licenses, property searches, vital statistics, voter registration, CHL registry, hunting and fishing licenses, professional licenses)

Step Two: How do I request citation by publication, and from whom?

First, if you know the location and identity of the Respondent, you must attempt to follow the regular rules of service of citation by locating and personally serving the Respondent, or following the rules of substituted service and/or the Hague Service Convention or other rules of international service.  For more details on service requirements, please visit our Additional Resource page: https://www.cilacademy.org/resources/additional-resources/.  If attempts to serve the Respondent through the traditional mechanisms fail,  you may file a motion for service of citation by publication under Tex. R. Civ. Proc. 106(b), including an affidavit by Petitioner or attorney declaring that attempts to serve the Respondent(s) were fruitless and that citation by publication is necessary to serve the Respondent.  See Tex. R. Civ. Proc. 109.  In this instance, the court must grant the order for citation by publication before you can proceed.

Alternatively, if after a diligent search the identity or residence of the Respondent is unknown, you can proceed with citation by publication under Tex. R. Civ. Proc. 109 by making the request directly with the district clerk along with an affidavit by the attorney or party that the residence of the Respondent is unknown, that the Respondent is a transient person, and that due diligence has not led to the location of the Respondent.  Citation by publication of a unknown person is also authorized in a country otherwise subject to the Hague Service Convention.  See Art. 1, Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (“®his Convention shall not apply where the address of the person to be served with the document is not known.”).  Additionally, the 5th Circuit has found that the Inter–American Convention on Letters Rogatory, where adopted, does not preempt other methods of service where available. Kreimerman v. Casa Veerkamp, S.A. de C.V., 22 F.3d 634, 636 (5th Cir. 1994).

Although you do not need a court order before service by publication in this instance, the judge will ultimately determine whether the search was diligent enough at the final hearing.  For that reason, some courts may have a local rule requiring a motion for citation by publication to avoid a party incurring the not insignificant cost of publishing a citation only to be told after incurring that cost that diligence is lacking.  A diligent search must include inquiries that someone who really wants to find the defendant would make, and diligence is measured not by the quantity of the search but by its quality.  Curley v. Curley, 511 S.W.3d 131, 135 (Tex. App.–El Paso,  2014, no pet.).  Notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable.  Velasco v. Ayala, 312 S.W.3d 783, 796 (Tex. App.–Houston [1st Dist. 2009, no pet.)(service by publication not sufficient when Petitioner knew the name and address of the Respondent in Mexico and failed to serve under the Hague Service Convention).  However, it may be enough for persons who whereabouts are unknown.  See Matter of Marriage of Sandoval, 589 S.W.3d 267, 274 (Tex. App. 2019).  The court has discretion to order an alternative form of service under Tex. R. Civ. Proc. 109a that would be as likely to give the Respondent notice of the suit.

Step Three: How do I ensure that citation by publication is property executed?

Once you have a court order for substituted service under 106(b) or you have determined that you are eligible to issue service by publication under Rule 109, be sure to follow both the specific rules for citation by publication found in the Texas Rules of Civil Procedure and the Texas Family Code.  First review and compare Tex. R. of Civ. Proc. 114 and 116 with Tex. Fam. Code § 102.010.  These rules were recently amended by SB 891 and the governing statute, Civil Remedies and Practice Code §§  17.032 and  72.034.  TRCP 116 has been amended to require citation of service by publication on Public Information Internet Website (PIIW) in all cases.   The PIIW along with answers to Frequently Asked Questions are available here: https://www.txcourts.gov/judicial-data/citation-by-publication/. The citation must be posted for 28 days before a return of citation can be issued.  Keep in mind that per Rule 107(h) the return of citation must be filed at least 10 days before a default judgment can be rendered.  Per the FAQ, the clerk may charge a posting fee for posting the citation to the website. This fee is the amount set by the Commissioners Court as a posting fee for the sheriffs/constables. The clerk should not charge a second issuance fee if an issuance fee has already been charged for preparing a citation for publication in the newspaper. The issuance fee is $8 for district clerks and $4 for county clerks. Please check your local fees for the exact amount set for the posting fee.

Publication by newspaper is also required in all cases with some new exceptions.  Those exceptions include where a party has filed a Statement of Inability to Afford Payment of Court Costs (under TRCP 145), if the total cost of the publication exceeds $200/week, or the county in which publication is required does not have a newspaper in circulation. 

The Family Code provides a sample of the required text in a publication (either by newspaper or PIIW).  Amended Tex. Fam. Code §102.010 clarifies a prior conflict in statute between the family code and rules of civil procedure by specifying that Respondents need only be given 20 days notice before a default judgment may be taken (in contrast to 42 days for service of citation by  publication in regular suits).**  Strict compliance with statute is required for service to be valid.  In re J.M., 387 S.W.3d 865, 870 (Tex. App.–San Antonio 2012, no pet.)(service by publication directed to a party using an incorrect name does not effect valid service).  Before citation is executed, be sure sure to double check that all of the information in the citation created by the district clerk’s office is correct, including the child’s country of birth (typically taken from the petition).   Be sure that the citation is substantially the same as the family code sample:

You have been sued. You may employ an attorney. If you or your attorney do (does) not file a written answer with the clerk who issued this citation by 10 a.m. on the Monday next following the expiration of 20 days after you were served this citation and petition, a default judgment may be taken against you. The petition of _________________________, Petitioner, was filed in the Court of _________________________ County, Texas, on the ____ day of _________________________, _________________________, against _________________________, Respondent(s), numbered _________________________, and entitled ‘In the interest of _________________________, a child (or children).’ The suit requests (statement of relief requested, e.g., ‘terminate the parent-child relationship’). The date and place of birth of the child (children) who is (are) the subject of the suit: _________________________.

**Note Fort Worth Court of Appeals has previously found that the 42 day language required in Rule 114 applies in SAPCR suits (without acknowledging the sample language in 102.010).  See In re D.C., 128 S.W.3d 707, 712 (Tex. App.–Ft. Worth 2004, no pet.).  The amended statute supersedes that ruling.

Step Four: Who serves the citation by publication?

The citation by publication by PIIW must be posted by the *elected* clerk of the court is the manager of the account and is the only person who can add users and determine their level of access. The elected clerk can assign management duties to the deputy clerk or other designee.  See PIIW FAQ.  Attorneys or filers do not have access to the PIIW system.  Attorneys or filers must follow any local rules to coordinate with the clerk to issue the citation.  If the local clerk is unaware of how to post, the PIIW FAQ directs them to "coordinate with your respective district or county clerk’s office or contact OCA for authorized user access." Once the citation is posted, it can be viewed by the attorney and the public at this site: https://topics.txcourts.gov/CitationsPublic.  Attorneys or filers should be diligent to ensure they see the posting for their case.  Each case has a publication start and end date as well as a status (Active or Return Issued).  The return  will only be issued back to the clerk that posted the publication.  When the return is issued, you should follow up with the clerk for local procedures to ensure that the official return issued by the PIIW is filed in your case.

The citation by publication in a newspaper, when required, shall be served by any sheriff or  constable or by the clerk of the court in which the case is pending.  In suits which do not involve the title of land or partition of real estate, such publication shall be made in the county where the suit is pending, if there be a newspaper published in said county.  Tex. R. Civ. Proc. 116(c)(3) (emphasis added). Request citation by publication from the district clerk (for example, in Harris County you would submit the Civil Process Request Form, https://www.hcdistrictclerk.com/Common/Forms/pdf/cpr.pdf).  You will need to indicate what newspaper you would like the citation to be published in.  Larger cities may have specific publications like the Daily Court Review in Harris County or the Daily Commercial Review in Dallas County.    Request that the constable provide the citation and petition to the newspaper for publication, and you will likely then receive an invoice for payment before the notice is published.   Some publications may offer a discount when an affidavit of inability to pay costs is on file with the court.   Every county may have different processes, and if you are working with a smaller or foreign jurisdiction, you may need to play a larger role in coordinating the different players to ensure publication, payment and return of citation.

The return of the officer executing such citation shall show how and when the citation was executed, specifying the dates of such publication, be signed by him officially and shall be accompanied by a printed copy of such publication.  Tex. R. Civ. Proc. 117(a).  The affidavit will be provided to court and the attorney.

Step Five: How do I ensure execution of citation by publication in a foreign country, if required by a court?

First, ask yourself whether this is necessary.  Citation by publication published in the county where suit is pending was found to be proper under the rules of civil procedure in a suit to terminate the parental rights of a father.  See  In re A.Y., 16 S.W.3d 387, 389 (Tex. App.–El Paso, 2000, no pet.); see also  Tex. R. Civ. Proc. 116.  However, a court has the discretion to order an alternative form of service if it would be just as likely to give notice of the suit.  See Tex. R. Civ. Proc. 109a; see also Velasco v. Ayala, 312 S.W.3d 783, 796 (Tex. App.–Houston [1st Dist. 2009, no pet.)(“[a]lthough nothing in the Hague Convention expressly disavows service by publication, because service under the Convention is required to be in Spanish and transmitted through Mexico’s Central Authority, it does not appear that service by publication in English in a Texas newspaper, when the defendant is known to be in Mexico… comports with the terms of the Hague Service Convention.”).  Be sure to analyze whether one of the new exceptions to publication in a newspaper applies to your case and put forth that argument in your 106(b) motion or motion for citation by publication of an unknown Respondent.

If a court requires it, file a separate motion and order for each citation by publication (one in county of suit, one in foreign country).  For the foreign citation, pick up the citation from the district clerk and translate to Spanish (or the language of the country where it will be published).  Contact the newspaper directly (a list of newspapers in Central America https://www.cilacademy.org/resources/online-library/), and obtain a PDF copy of the publication after it is published.  The attorney must also request a publisher’s affidavit akin to the affidavit that a constable would sign, and provide it to the constable to be served on the district clerk. There is no prescribed form for publisher’s affidavit; it should comply with Tex. R. Civ. Proc. 117(a) (return of citation by publication by newspaper) specifying when and how the citation was published and accompanied by a printed copy of the citation and the associated translation when applicable.

Step Six:  What safeguards are in place for the parent served by citation of publication who does not file an answer in the suit?

If no answer is filed by the Respondent after service by citation of publication, the court must appoint an attorney ad litem to defend the suit in behalf of the unknown parent and provide a statement of evidence.  See Tex. R. Civ. Proc. 244.    When appointed the attorney ad litem is required to investigate the petitioner’s due diligence in locating the Respondent which might include, interview any person with significant knowledge of the location of the Respondent as well as conduct an independent investigation of the location of the Respondent.  As part of the investigation, the attorney ad litem will likely reach out to your client to get information about the whereabouts of the client, and may ask your client to sign sworn interrogatories, a discovery tool used to gather evidence in a case.   The attorney ad litem’s fees are not paid for by the county; your client should be ready to pay the fees or find an attorney willing to act as ad litem pro bono.

If the attorney ad litem is unable to identify or locate an alleged father, the attorney ad litem shall submit to the court a written summary of the attorney ad litem’s efforts to identify or locate the alleged father with a statement that the attorney ad litem was unable to identify or locate the alleged father. On receipt of the summary required by this subsection, the court shall discharge the attorney from the appointment.  Tex. Fam. Code § 107.0132 (duties of attorney ad litem for an alleged father in a governmental entity served citation by publication). The attorney ad litem will likely then enter a general denial and ask that the relief requested be denied. This is a common response, and the inability to locate the Respondent helps prove-up the abandonment and neglect findings at the final hearing.  If the attorney ad litem is able to identify and locate the Respondent, the attorney must provide the name and contact information of the alleged father to the parties.  Id.  

Step Seven: What if USCIS is requiring an additional proof of parentage because a parent is not on the birth certificate?

The USCIS Policy Manual requires that the predicate court order for Special Immigrant Juvenile status “establish”  that the person (or persons) against whom a non-viability of reunification finding is made is the child’s parent (or parents).  See 6 USCIS Policy Manual, Part J, Chapter 2.D.2 available at https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2.  USCIS does not define what it means to do this but provides an example in which a parent who is not on the child’s birth certificate requires”a determination that the claimed father is the father under state law should be established in the juvenile court order.”  See id. In Texas, there are multiple ways to establish parentage, including by presumption, operation of law and adjudication by a court.  Adjudication of parentage requires personal jurisdiction as prescribed by Tex. Fam. Code §§ 159.201; 160.604.  Therefore,  citation by publication will not automatically provide personal jurisdiction over the Respondent for the purposes of adjudication of parentage.  Personal jurisdiction over the Respondent parent is not required in custody suits or suits to terminate the rights of a parent.  See White v. Blake, 859 S.W.2d 551, 564 (Tex. App.–Tyler 1993, re’hearing ).  If the identity of the father is unknown,  ask for the SIJ findings against the unknown father as an alleged father, even if he has not been adjudicated as father.

This legal update is intended for lawyers and is not a substitute for independent legal advice supplied by a lawyer familiar with a client’s case. The cases cited herein do not constitute an exhaustive search of relevant case law in all jurisdictions. If you are a lawyer who represents unaccompanied children in Texas and have a question about your case, please reach out to us for technical assistance: https://www.cilacademy.org/request-assistance/