GUIDELINES FOR MOTIONS FILED IN THE CCL

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Motions for Summary Judgment can be set for submission without hearing by setting a written submission deadline on the 21st day following the e-service notice of the submission deadline (24 days after service by mail if e-service is not available to the responding party). An oral hearing may be obtained by filing a response no later than 2 working days before the submission date along with a request for an oral hearing.   Plan ahead and do not wait until the last minute to file your response or request a hearing.

An Attorney Ad Litem will be appointed to represent a party served by publication. Exceptions may be made in cases with no children and no property. Parties seeking such an exception should approach the judge. An Ad Litem will not be waived in cases involving children. In each such case, the Ad Litem’s affidavit of due diligence must be on file prior to finalization of the case. The Ad Litem’s fees must be paid in advance.

A PARTY SEEKING TO SERVE A DEFENDANT BY PUBLICATION SHALL FILE A WRITTEN MOTION WITH THE CLERK, SUPPORTED BY THE AFFIDAVIT CONTEMPLATED BY RULE 109

Tex. R. Civ. P. 109 requires that a party exercise diligence in attempting to ascertain the whereabouts of a defendant whose residence is unknown before filing an affidavit with the clerk and requesting that citation issue for service by publication. "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." In the Interest of E.R., 385 S.W.3d 552, 565 (Tex. 2012). Rule 109 also requires that the court inquire into the sufficiency of the diligence exercised before granting any judgment on service of citation by publication. Diligence in trying to locate may include certified letters to las know addresses, social media searches, internet searches, documented contact with family members, attempts by law enforcement or process servers to locate the party to name a few. Any affidavit supporting a motion pursuant to Rule 109 should include documentation of these attempts (Copies of CMRR letters, affidavits of attempted service, search results, etc.)

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, it is the policy of this Court that a party seeking to serve a defendant by publication file a written motion with the clerk, supported by the affidavit contemplated by Rule 109, and set the motion for submission to the court for its consideration BEFORE having a citation issued for service by publication.

Please note that Tex. R. Civ. P. 116 and 117 require that a sheriff, constable or the clerk serve a citation by publication by having the citation published, and that the sheriff, constable or clerk make a return of service, signed by him or her, specifying the dates of such publication and be accompanied by a copy of the publication. In many instances, the Court finds that a party, or his/her/its attorney, simply mails or delivers the citation to a newspaper and thereafter files a publisher's affidavit accompanied by a copy of the publication. 

Complying with Rules 116 and 117 will cause a party to incur a service fee charged by the sheriff, constable or clerk, but complying with these rules will also help ensure that jurisdiction is obtained over the defendant served by publication and a valid judgment is rendered. "Personal jurisdiction, a vital component of a valid judgment, is dependent 'upon citation issued and served in a manner provided for by law.' If service is invalid, it is 'of no effect' and cannot establish the trial court's jurisdiction over a party. When judgment is rendered on service of process by publication, a party has two years to move for a new trial, which the trial court may grant for 'good cause.' But if service was invalid, a party is entitled to a new trial without showing good cause." In the Interest of E.R., 385 S.W.3d at 562 (citations omitted). "A complete failure of service deprives a litigant of due process and a trial court of personal jurisdiction; the resulting judgment is void and may be challenged at any time." Id. at 566. See also Hopkins v. Cain, 105 Tex. 591, 143 S.W. 1145 (Tex. 1912); Goodlove v. Gray, 7 Tex. 483 (Tex. 1852); Robb v. Horizon Cmtys. Improvement Ass'n, 417 S.W.3d 585 (Tex. App.-El Paso 2013, no pet.); Daniel Miller Co. v. Puett, 252 S.W. 333 (Tex. Civ. App. 1923); Turner V. McFarland, 233 S.W. 295 (Tex. Civ. App. 1921).

Motion for Substituted Service (Rule 106) 

All motions for substituted service under Rule 106 must be accompanied by an affidavit that describes the efforts taken to verify that the defendant actually lives or works at the subject address, at least four attempts of service at different times of day with the specific dates and times, the identity of person(s) present at the subject address and any other indications that the defendant resides at the subject address. All Rule 106 motions must be filed with a proposed order.

The Court will consider ex parte requests for relief during normal business hours, subject to the Court’s availability, with priority given to matters previously scheduled on the Court’s docket. Matters that will take longer than ten minutes or that require a record should be set with the Court Administrator.

Prior to presentment, all applications for ex parte orders shall certify in writing, signed by the party or attorney, using the following or this form, one of the following:

1. I hereby certify as follows: (check off and fill in blanks as required)To the best of my knowledge, there is no attorney of record representing any opposing party at this time; OR,
2. Prior to presenting this matter to the Judge for approval, I contacted all attorneys of record, transmitted a copy of the pleadings and proposed order in this matter, and notified them that I was requesting such ex parte relief, and:

• After conferring, no attorney of record wishes to be heard prior to the presentment of this request for ex parte relief; OR,
• We were unable to reach an agreement, at which time I notified all attorneys of record that I would present this matter to the Court at (time) on (month) ,_, (date) in (court) and invited them to attend and be heard prior to signing; OR, 
• I was unable to speak with the opposing attorney(s) and I left word with a staff person for each attorney that I would present this matter to the Court at  (time) on (date) in the (court) and invited them to attend and be heard prior to signing; OR, 
• After diligent attempts, I was unable to reach the opposing attorney(s) and was further unable to leave any message with counsel's office regarding the presentment of this matter to the Judge.

For purposes of this rule, representation of prior counsel ends upon the entry of a final order.

Check file for proof of service return. Must Have:

1. Decree/Judgment;
2. require a record; 
3. Certificate of Last Known Address per Rule 239a; 
4. Non- Military Affidavit and 
5. Employers Order to Withhold Wages (if children)
6. Medical Child Support Order (if children)
7. BVS 165 

Notice of hearings will/must be sent to the Respondent sufficiently in advance to allow reasonable notice of the hearing date.