BILL ANALYSIS



S.B. 1306
By: Lucio (Oliveira)
May 17, 1995
Committee Report (Amended)


BACKGROUND

A default judgment may be reversed against an out of state
defendant if the defendant has not received notice of the
proceeding.  That defendant may also have a default judgment
reversed even if there is an error in the way the case is pled or
if they refuse to claim their certified mail, and even when the
defendant did in fact have actual notice of the pending proceeding
at an address previously agreed to in a written agreement.  The out
of state defendant must only file a "writ of error" stating that
the Texas resident did not follow the procedure for pleading or
service of process to the letter, possibly by leaving out specific
wording in the petition to the secretary of state, such as "home or
home office" when referring to the residence of the out of state
defendant.

PURPOSE

The bill would prevent an out of state defendant from evading
service.  Specifically, if an out of state defendant does business
in Texas and fails to designate a registered agent, and then enters
into a written agreement designating a specific address for
service, that defendant should be precluded from reversing a
default judgment by claiming lack of service of process when notice
is sent to the address specified by the defendant in the written
agreement.

RULEMAKING AUTHORITY

It is the committee's opinion that this bill does not expressly
grant any additional rulemaking authority to a state officer,
department, agency or institution.

SECTION BY SECTION ANALYSIS

     SECTION 1.     Adds Section 17.045 (a) to read as follows:
     
     (a) If the secretary of state is served with duplicate copies,
he shall require a statement from the party requesting service,
address of the nonresident where the party requesting service
reasonably believes the nonresident may be served with process. The
secretary of state shall immediately mail a copy to the nonresident
at the address specified in the statement from the party requesting
service.

     Amends Section 17.045 (d), Civil Practice and Remedies Code,
by adding language pertaining to party's requests for services and
requirements that notices be sent registered mail. 

     It adds Section 17.045 (f) to read as follows: 

     (f) In case of a default of judgement entered against a
nonresident after service under this section, the process or notice
is considered to have been received by the non-resident, even if
the nonresident did not take possession of the process or notice on
delivery by registered or certified mail, on proof that reasonably
indicates that the nonresident, not later than 30th day before the
date of the default judgement, actually knew or reasonably should
have known about the action against the nonresident.

     SECTION 2. Applies only to a cause of action in which service
of process or notice is made under Sect. 17.045, Civil Practices &
Remedies Code, on or after September 1, 1995. 

     SECTION 3.     Emergency clause.

EXPLANATION OF AMENDMENTS

Committee Amendment #1 strikes Section 17.045 (a) and substitutes
a new section 17.045 (a) to explain the role of the secretary of
state.

SUMMARY OF COMMITTEE ACTION

S.B. 1306 was considered by the Committee on Civil Practices in a
formal meeting on May 16, 1995. The committee considered one
amendment, which was adopted without objection. The bill was
reported favorably, as amended, with the recommendation that it do
pass and be printed by a record vote of five ayes, one nay, zero
pnv and three absent.