It is instructive to note that the Code Construction Act applies to the Texas Rules of Civil Procedure. In re. Walkup, 122 S.W.3d 215, 217. Tex. Gov’t Code § 311.026 (b) states:

“If the conflict between the general provision and the special provision or local provision is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later enactment and the manifest intent is that the general provision prevail.”

The amended Rule 103 is the later enactment, and the manifest intention of it is to allow private process servers to serve a wide variety of process including writs. The code is precisely applicable to the matter before the task force, and it is my hope that it be considered in any recommendation.

I strongly urge all interested parties to contact the chair and other members of the task force, and request they recommend to the court language clarifying 103 to mean what it says, and/or that 663 includes persons authorized under 103. I consider the matter urgent, and until is laid to rest we will continue to be challenged by garnishees, and passed over by the uninformed resulting in needless economic loss.

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The sheriff or constable receiving the writ of garnishment shall immediately proceed to execute the same by delivering a copy thereof to the garnishee, and shall make return thereof as of other citations.

For starters, it appears to me that Rule 663 does not expressly prohibit service by a private process server, but I digress. In my view Rule 103 TRCP amended and effective 2005, trumps 663. In support, the rule to wit:

Process-including citation and other notices, writs, orders, and other papers issued by the court-may be served anywhere by (1) any sheriff or constable or other person authorized by law, (2) any person authorized by law or by written order of the court who is not less than eighteen years of age, or (3) any person certified under order of the Supreme Court. Service by registered or certified mail and citation by publication must, if requested, be made by the clerk of the court in which the case is pending. But no person who is a party to or interested in the outcome of a suit may serve any process in that suit, and, unless otherwise authorized by a written court order, only a sheriff or constable may serve a citation in an action of forcible entry and detainer, a writ that requires the actual taking of possession of a person, property or thing, or process requiring that an enforcement action be physically enforced by the person delivering the process. The order authorizing a person to serve process may be made without written motion and no fee may be imposed for issuance of such order.

Obviously, the writ of garnishment is not one that requires the actual taking of possession of a person, property or thing, nor one requiring that an enforcement action be physically enforced by the person delivering the process. As stated even in [the dated] 663, it’s just another citation.

As for the outcome of my cases, in one instance the 116th District Court of Dallas County upheld the service denying the garnishee’s motion to dissolve (Dallas City Bank vs. Lori Gerard, et al). In the other, the plaintiff’s attorney elected to have the writ re-served by constable rather than incur the additional expense to defend. In either case, my authority to serve the writ should never have been in question. Swift clarification from the Texas Supreme Court rules attorney would be helpful, or-in lieu of the same-the exercise of any remedy available to those of us who believe that 103 clearly grants authority to serve the writ of garnishment by persons certified under order of the Texas Supreme Court. There is no case law since 1999 supporting any notion to the contrary. Who’s with me?

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16 – Taps with Orchestration (Bugle Call – With Orchestration)

As process servers, most of us will occasionally find ourselves in possession of a citation or writ of which service may appear problematic. When you find yourself in this situation, it may be a good idea to do a bit of research. If in doing so you discover a rule or statute that addresses the particular circumstance, share your findings with your client. Throughout the years, it has been my experience that most attorneys appreciate that level of concern and initiative, and- more often than not- will further investigate your findings before proceeding with service.

Proper service being the single most critical element in the commencement of any lawsuit, it is advisable that process servers refer to and rely only on rules and statutes as authored by the governing body and adopted by the Texas Supreme Court.

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