Coming soon to your email or direct message inbox—“You’ve been served.” The modes of communication we rely on are continually evolving. In the 1990s, AOL introduced the distinctive sound of “You’ve got mail.” In the 2000s, Facebook introduced instant messenger, later Instagram. More recently, Twitter has become an official channel of government and corporate communication. Texas has now adapted the rules for service of lawsuits to the new reality of how we communicate.

On August 21, 2020, the Texas Supreme Court announced upcoming changes to the Texas Rules of Civil Procedure. Included in those changes is a ground-breaking modification to the rules regarding service of process. Service of process is the procedure by which a party gives official notice to another party of the initiation of a legal action against that party, such that a court takes jurisdiction over the claim and the other party is legally required to respond. As of January 1, 2021, litigants may serve a lawsuit upon a defendant by way of transmission to a defendant’s social media or email account.

Under the newly amended Texas Rule of Civil Procedure Rule 106, litigants may serve a defendant “electronically by social media, email, or other technology” if the traditional methods of service, such as personal service or substituted service through certified or registered mail are unsuccessful. In other words, service via social media or email requires court approval and will be permitted only upon a showing that service attempts in-person or through certified mail were unsuccessful. The Texas Rules of Civil Procedure have long recognized alternative methods of service when the traditional methods fail, such as service by publication in a periodical of general circulation where the defendant is likely to reside. The amendments to Rule 106 are reflected in the Texas Supreme Court’s August 21, 2020 order.

The new amendments expressly adapt that long-standing rule for new technologies. This change will make the commencement of the litigation process much easier for some plaintiffs. If a plaintiff is unable to serve a defendant through personal service or certified mail, this new rule will provide plaintiffs with a new means of effectuating service. This will be especially helpful for litigants that are trying to serve defendants for which it is difficult to establish a usual place of business or a usual place of abode.

For defendants, this change will make dodging service of process more difficult. It may, however, also have another unintended consequence. This new rule will place an additional burden upon agents of service of process to keep a closer watch upon their emails and social media accounts. The same can be said of corporate officers, directors, or other persons to whom service of process for a business organization would be permitted under the Texas Rules of Civil Procedure. In-house attorneys will need to advise and educate managers of corporate Twitter, Facebook, and other social media accounts to promptly notify them of any service attempts. Additionally, Rule 108 of the Texas Rules of Civil Procedure permits the service of out of state defendants, including defendants not licensed to conduct business in Texas, pursuant to Rule 106. That means, for example, emailing a Texas lawsuit to the officer of a small Vermont corporation may constitute sufficient service of process under the newly amended Rule 106. If the officer misses the email or social media message, it may lead to a default judgment against his or her business organization.