I've got a couple of defendant's that we are totally striking out getting served. Some are cars and we've struck out at the address the car was registered to with DPS.

Some cases are money and we just can't find these people and can't get them served in court because they've bond forfeited.

I know we can file a motion for substitute service and then post it. But I�m unclear on the logistics.

I have a vague recollection (which could be completely wrong) that if you post, the time for a motion for new trial and/or other post judgment motions is significantly longer. Is that right?

When we have a person personally served, I wait 45 days after the default judgment is signed before we send to the PDs for distribution of the funds/ cars. Will I need to wait longer?

Also, if we took money from Joe Defendant and he used his sister's address for his bonding paperwork and at the time of arrest, yet the sister claims he doesn't live there or know where he is, can I have the service given/posted on her house?

I totally appreciate all y'alls help. I'm trying to clear out some old cases.
I sometimes feel like I'm recreating the wheel. So any guidance is appreciated.

The defendant has up to 2 years to file a Motion for New Trial. But read all of Rule 329 -- If you were planning to sell the car, I would still do it. IF (that's the big IF) the defendant were to file a MNT, then IF s/he were to prevail, they could get the proceeds of the sale if you already sold it. If you have been diligent in trying to serve him/her (which it sounds like you have), I don't think many judges would reward the drug-dealing, bail-jumping defendant who waits two years to show up and fight (after you have potentially lost witnesses or evidence). If your budgets are so tight, you are afraid you won't be able to cover having to return money, then save some. We always try to keep a reserve for just those cases, but it hasn't happened yet.

You could post it at the sister's house, but I would post on the courthouse door for sure. What I would also do is try to serve Defendant and the sister, CMRRR, with a copy of the petition at sister's address. This could prove handy if Defendant shows up after two years and says "I lived with my sister, and never got served there." You will then be able to show the court you tried (and failed) to serve D there, but also went out of your way to give actual notice, and served the sister, too. It will also help you at the actual trial, when you and the ad litem can stand up there and say everything that was done to give service and actual notice.

See rule 244, which talks about procedural stuff that has to be done at a trial on service by posting. If you have O'Connor's Texas Rules, her commentaries are VERY helpful. Good luck.

When I did forfeitures on the border, 99.9% of the time, the registered owners on the title had sold the car & the car had changed hands more than once by the time the crook got caught with drugs in the car. The crooks weren't too careful about registering cars in their own names, for obvious reasons. I wouldn't stress too much about those & wouldn't hesitate to go through the service by publication process & selling the cars. I never had a motion for new trial on those kinds of cases crop up after waiting a month or two. And they certainly never came up after that.

Hope this helps.

Thanks for the advice.

How we deal with cars is award them to the PD. My office takes nothing. After the PDs get the car, I have no idea what they do with it.

On the car with the defendant and his sister: we served the guy in jail and have an interlocutory default judgment against him. We are just toally striking out with the sister. I'm going to try her one more time (it's out of county, so we're having trouble with the constables returning the paperwork unexecuted). Then I'm going to post it.

On the couple of guys where it's money we've taken and we can't find them anywhere, can we post it or do we have to do by publication?

Thanks again.

rk

For money, you would need to file a Motion for Alternative Service and then do a citation by publication. You then need to have an attorney ad-litem appointed to verify that service was done properly before obtaing a judgment.

Ch. 59 provides for service by posting only in vehicle forfeitures and only after you have attempted regular service. I do not believe you need to file a motion with the court for service by posting, although one of our judges disagrees with me.

The two year period for filing a motion for new trial only applies specifically to Citation by Publication, not Citation by Posting.

according to Gray v. PHI Res. 710 SW2d 566, posting is analogous to citation by publication.

The posting provision of Ch. 59 is specifically limited to motor vehicles and sets forth the procedures to be followed by the State's attorney. It does not provide that a respondent served via posting would have 2 years to set aside a judgment.

Gray v. Phi Resources was decided several years before Ch. 59 was enacted and does not address the citation by posting provisions in Ch. 59.

Gray concerns the appointment of a receiver for oil and gas rights and specifically concerned the Plaintiffs attempting to effectuate service on potential heirs and beneficiaries to the mineral rights by posting the petition at the Courthouse for 3 days prior to the receivership hearing. When the heirs came forward within two years of the date of judgment, the court held that they were entitled to do so within the 2 year period. The Court relied upon Rules 109, 109a and 329 of the Rules of Civil Procedure in making that determination.

In that the posting provision of Ch. 59 is strictly limited to motor vehicles and requires attempted personal service prior to posting, I doubt a reviewing court would rely much upon the Gray holding and allow a respondent served with citation by posting pursuant to the provisions of Ch. 59 to move for a new trial after the 30 day plenary power of the trial court had expired.

However, I could be wrong.

Whenever we seize money and can't subsequently find the guy for service, we do it by posting and the judge appoints an attorney ad litem. We then just go through the usual discovery. Depending on the judge, we can get a summary judgment on deemed admissions, or, notice the respondent for a deposition. When he doesn't show, we move for sanctions, strike his pleadings and take a default.