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What is due diligence?

JBCC Process Server Training

Have you ever been told that you must perform “due diligence” in order to complete an assigned serve? Process Servers are often told they must complete “due diligence” as a part of their duties. So what does “due diligence” mean?

What is Due Diligence?

Due Diligence

Due Diligence is defined by Black’s Law Dictionary the following way:

“Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.” -Black’s Law Dictionary

So in the context of Civil Process Service how is that definition applied? We first need to know where is the term “due diligence” used in the Process Server profession. Let’s take a look at the Texas Rules of Civil Procedure (TRCP). The term “Due Diligence” is used three (3) times as summarized below.

TRCP Rule 109 – Citation by Publication

TRCP Rule 109 states that only after due diligence a party to a suit may have the clerk of the court issue citation for such defendant for service by publication.

TRCP Rule 252 – Application for Continuance

TRCP Rule 252 states that a Application for Continuance based on a needed testimony can be granted if due diligence can be shown in trying to obtain the testimony and that testimony can only be obtained by the missing witness.

TRCP Rule 758 – Where Defendant Is Unknown or Residence Is Unknown

TRCP Rule 758 Due Diligence is mentioned in regards to civil action against land in Texas and due diligence is required for citation to be issued for service by publication when the land owner is unknown or unable to be located.

“The proper objective of rules of civil procedure is to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law.”  -TRCP

You may be familiar with these rules or it may be the very first time you have seen them. In any case, you can see they have to do with “Service by Publication” for civil suits filed in Texas.

This may be useful information to some, but it still does not answer our overall question. So, let’s take a look at rules set by the Texas Judicial Branch Certification Commission (JBCC). The JBCC Rule Book does not even mention due diligence, and neither does the JBCC Code of Ethics. So, there isn’t much help there.

Let’s take a look at the Texas Civil Practices and Remedies Code (TCPR). “Due Diligence” is mentioned twice in the TCPR as follows:

TCPR Section 10.002 – Motion for Sanctions

Due diligence is needed in order for a Motion for Sanctions to be granted for frivolous pleadings and motions under Section 10.001 – SIGNING OF PLEADINGS AND MOTIONS of the Texas Civil Practices and Remedies Code.

TCPR Section 16.0045(d) – Limitations Period for Claims Arising From Certain Offenses

Requires that due diligence is needed in the discovery of unknown defendants of a civil suit in regards to certain types of civil suits and is related to the time limits of a certain types of civil suits.

Which still leaves us with no true understanding of how due diligence is applied to process servers. Which makes one wonder why do some even think that due diligence is relevant to Texas Process Servers in the first place. We may find some answers in the procedure in which one becomes a Certified Process Server in Texas. JBCC uses a Standardized Curriculum for Orientation Courses as a guide to Course Providers approved by JBCC to offer initial training to Texas Process Servers.

The Page 9, Paragraph (d)(7) of the JBCC Standardized Curriculum for Orientation Courses states the following:

If the plaintiff cannot with due diligence locate the defendant, then the plaintiff must use Rule 109 or Rule 109a.

Paragraph (e) continues with:

“Citation by publication (Rule 109) is a form of substituted service that may be made when the residence of a defendant is unknown and the plaintiff has been unable to locate the whereabouts of such defendant after using due diligence to do so.”

This gives us some insight on who must do the due diligence and it’s clear that it is not the duty of the process server. Due diligence is not mentioned any where else in the curriculum. Out of all the resources reviewed thus far, we have not been able to show that due diligence is ever used in the context of what a Process Server is supposed to do when performing their duties. However all of the above sources do in fact mention what the duties of a process server are.

So What Exactly is a Process Server Really Supposed to Do?

Let’s start with the same curriculum provided by JBCC. Page 3 states the following about Process Server Duties:

A process server has two distinct and equally important duties:

(1) to promptly and properly deliver the proper papers to the proper person; and

(2) to promptly and properly complete and file with the court a return of service.

It seems JBCC has made it very clear what is expected of a process server and those duties are supported by the TRCP with the following Rules:

TRCP Rule 16 – Shall Endorse All Process

Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially.

TRCP Rule 105 – Duty of Officer or Person Receiving

The officer or authorized person to whom process is delivered shall endorse thereon the day and hour on which he received it, and shall execute and return the same without delay.

TRCP Rule 501.3 (For Civil Suits filed in Justice Courts) Shall Endorse All Process

Every officer or authorized person shall endorse on all process and precepts coming to his hand the day and hour on which he received them, the manner in which he executed them, and the time and place the process was served and shall sign the returns officially.

Another Common Misconception

TRCP Rule 106 – Method of Service

TRCP Rule 106(b) states the following:

Upon motion supported by a statement-sworn to before a notary or made under penalty of perjury-listing any location where the defendant can probably be found and stating specifically the facts showing that service has been attempted under (a)(1) or (a)(2) at the location named in the statement but has not been successful, the court may authorize service:

(1) by leaving a copy of the citation and of the petition with anyone older than sixteen at the location specified in the statement; or
(2) in any other manner, including electronically by social media, email, or other technology, that the statement or other evidence shows will be reasonably effective to give the defendant notice of the suit.

This rule has often been misinterpreted to mean that minimum amount of attempts must be made in order to have a Motion for Substitute Service granted by a court. This is absolutely incorrect. As you can see above the only requirements for an Order Granting Substitute Service are:

1. A Motion be made for Substitute Service

2. A sworn statement supporting substitute service must be provided to the court. The sworn statement must have the following elements:

a. List any location where the defendant can probably be found

b. State the specific facts showing that service has been attempted either by delivering a copy of the citation and petition in person or by certified mail at the same location listed in 1.

3. That such attempts were unsuccessful

Still, no requirement for due diligence and it does not say who must do the sworn statement. It’s crucial point out that the person who swears to facts should have personal knowledge of the facts and that it should not be knowledge gained through hearsay.

So how is a process server supposed to deliver documents if they can not find the person?

Short Answer: You’re not supposed to “find” anyone as a process server.

Long Answer: Your function is quite simple: Deliver the documents using the provided information from the plaintiff or the plaintiff’s attorney. Despite popular belief, a process server is just a glorified courier. If you wouldn’t expect the postal worker or FedEx worker to ask where you are or go to your neighbor’s house and ask when you will be home, then it’s safe to say you shouldn’t do that either as a process server. If you cannot deliver the documents with the provided information, then you should let the plaintiff or their attorney know so they can hire the appropriate person to find the person for you.

Attorneys, as well as directly supervised staff of the attorney, are exempt from having to be licensed as Private Investigators in Texas (Tex. Occ. Code 1702.324) and most attorneys have staff that perform that function. If an attorney chooses not to do any internal investigations to locate the party being served, they may contract a Private Investigator to do it for them. In any case, it is not the function of the process server to “look for” or “locate” any one, especially when they are not licensed to do so.

My client expects me to “skip trace” a party when they cannot be found. What do I do?

You may be thinking by now that you are not hurting anyone or breaking any laws because you are not claiming to be a Private Investigator and do not make any suggestion that you can do Private Investigator work. The fact is, “skip tracing” is the same as Private Investigator work; locating someone is generally referred to as “skip tracing” in both industries and giving the “act of looking for a person” a different name does not protect you from circumventing the law.

Texas Occupations Code (Tex. Occ. Code) Chapter 1702.001 defines a Private Investigator is as a person who performs one or more services described by Section 1702.104 of the same code.

Performing any of the acts listed below and you will be considered a Private Investigator:

1. Engages in the business of obtaining or furnishing, or accepts employment to obtain or furnish, information of a person related to the:

a. identity
b. habits
c. business
d. occupation
e. knowledge
f. efficiency
g. loyalty
h. movement
i. location
j. affiliations
k. associations
l. transactions
m. acts
n. reputation
o. character

2. Engages in the business of securing, or accepts employment to secure, evidence for use before a court, board, officer, or investigating committee including, but not limited to, taking photos, running license plates, using services like TLO, Tracers or any similar online searching tools.

3. Engages in the business of securing, or accepts employment to secure, the electronic tracking of the location of an individual or motor vehicle.

Do so while unlicensed and you will be considered an Unlicensed Private Investigator and that is a violation of Chapter 1702. Agreeing to perform these acts on a regular basis with any person and you would be considered operating an Unlicensed Private Investigation Company. It is the “performance of” the duties, not the “claim of” being a Private Investigator, that counts as a violation. (Tex. Occ. Code 1702.3876)

You have to be upfront about what your duties consist of and that you are not able to provide any service that requires a license you do not possess. The concept is the same as the requirement to have a driver license to drive a motor vehicle while serving papers.

It may be a good idea to build a relationship with a licensed private investigator and refer those requests to them. The worst thing a process server can do is to perform the Private Investigator’s duties for no fee, leaving the Private Investigator with no work, and nobody gains from the services provided but the plaintiff or attorney. This is unethical and illegal in most states. In Texas it is a Class A Misdemeanor with harsh penalties. In addition, a conviction can cause you to loose your certification and you could be facing prison time, monetary fines or both. (Tex. Occ. Code 1702.3876)

What if I am a Licensed Private Investigator too?

Unless the person holds a license as a security services contractor, they are prohibited from engaging in business activity for which a license is required under Chapter 1702 of the Texas Occupations Code. (Tex. Occ. Code 1702.102(3)) A person holding only an Individual Private Investigator License is required to be employed by and work for a Licensed Private Investigations Company. (Tex. Occ. Code 1702.122) Any contract for work must be administered through that agency. (Tex. Occ. Code 1702.122) There are certain circumstances where a private investigator can work directly for a law firm, but again, attorneys are exempt from the licensing requirements. There is no legal way to “freelance” as a private investigator in Texas. This is also the case for most states.

You should check with your sponsoring agency to find out what their policies are for providing skip trace services to your clients and how liability factors in. Your duties as a Private Investigator and your actions while performing those duties ultimately fall on the lap of your sponsoring agency if any thing bad happens or if any one claims that something bad has happened. All it takes is one quick check to see if you are licensed as a Private Investigator and which company you work for. You will not be able to conceal this from the public’s eye let alone any complainant.

But they are not paying me to “skip trace“, so it’s okay right?

Whether or not you are getting paid directly for performing the duties of a Private Investigator is irrelevant to the fact that you would still be in violation. It is the performance of the duty that counts, not the getting paid for the duty. Regardless if you think you are charging for providing the service, you are still getting paid to serve the papers and this would constitute charging for all the services you rendered to your client even if you do not list it on your invoice that way. You wouldn’t do the skip trace work if you were not serving papers, therefore you are getting paid to provide skip trace services indirectly if you choose to perform that duty.

Why do the extra work?

It is beyond logic to perform a service illegally for free just to impress your client or give the appearance that your service somehow has more quality. It is also unethical to induce your clients or any other person that you have more authority than what you have as a certified process server. In fact, JBCC specifically addresses these issues in the JBCC Code of Ethics section (2)(c) and section 6.

Making attempts at specific times of day as requested by a client is also unethical. This would be considered making frivolous attempts. Your choice of when to make attempts should be random, based on experience or based on arrangements made with the recipient. Instructions that tell you when to go could be biased or designed to make sure you miss the person. There are many issues that can arise from only going at certain times. If a person knows that you will only come at designated times, they only have to make sure they are not home at those times.

Making several attempts when you know a person will not be there just because your client asks you to is also unethical. Especially if they are asking you to do it only to get an Order Granting Substitute Service. If you do not believe a person can be found at an address, you should file an affidavit with the court stating so. You should never provide an affidavit in support of a motion for substitute service just because a client asked you for one. Again, a process server’s role in civil process is to obtain a just, fair, equitable and impartial adjudication of the rights of both litigants. Attorneys do not have the authority to dictate how or when, you should file an affidavit or what you say in your Return of Service or any Affidavits. If an attorney requests that the process server not file the return or not file the return promptly, this request is contrary to law and must not be honored. (JBCC Standardized Process Server Curriculum Page 18) An affidavit is a reflection of your words alone and should not be tampered with by anyone else. Remember you are the one swearing to the accuracy and truthfulness of the affidavit you sign and file with the court under penalty of perjury.

Where can I find a private investigator in Texas?

Best place to start would be the Texas Association of Licensed Investigators (TALI). You can search their site at Private Investigators are listed only after completing a rigorous credentialing process and agreeing to abide by TALI’s Code of Ethics. All listed Private Investigators are members of TALI. You can be assured that you will get a professional investigator with TALI.

Question Answered

So, it seems that when it comes to due diligence for a process server, we can see that it only means that a process server perform their duties as thoroughly and as prescribed by JBCC and the Texas Rules of Civil Procedure and has nothing to do with making frivolous attempts, locating persons, or performing any service that a process server isn’t required to do.

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