Last amended April 1, 1984 · Last verified June 28, 2026
In one sentenceRule 109 lets the clerk issue citation by publication when a sworn affidavit shows the defendant's residence is unknown, the defendant is transient, or the defendant is a nonresident whom personal service has failed to reach — and the court must check the diligence before judgment.
Full Text of Rule 109
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When a party to a suit, his agent or attorney, shall make oath that the residence of any party defendant is unknown to affiant, and to such party when the affidavit is made by his agent or attorney, or that such defendant is a transient person, and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, or that such defendant is absent from or is a nonresident of the State, and that the party applying for the citation has attempted to obtain personal service of nonresident notice as provided for in Rule 108, but has been unable to do so, the clerk shall issue citation for such defendant for service by publication. In such cases it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant or to obtain service of nonresident notice, as the case may be, before granting any judgment on such service.
End
Plain-English Summary
Rule 109 is the gateway to serving a defendant by newspaper publication. When a party, agent, or attorney swears that the defendant's residence is unknown, or that the defendant is a transient person whose whereabouts the party and affiant could not locate after due diligence, or that the defendant is absent or a nonresident whom the party has tried and failed to reach under Rule 108, the clerk issues citation for service by publication.
Publication service is a last resort, so the rule adds a judicial check: before granting any judgment on it, the court must inquire into whether the party exercised enough diligence to find the defendant or obtain ordinary service.
Frequently Asked Questions
When can you serve by publication in Texas?
Under Rule 109, when a sworn affidavit shows the defendant's residence is unknown, the defendant is a transient person whose whereabouts could not be located after diligence, or the defendant is a nonresident whom personal service under Rule 108 could not reach.
Who can sign the affidavit needed for publication service under Rule 109?
The party, or the party's agent or attorney, may make the oath. When an agent or attorney signs it, the defendant's residence must be unknown not just to that agent or attorney but to the party as well.
Does publication service under Rule 109 guarantee a valid judgment?
No. Before granting judgment on service by publication, the court must inquire into whether the party exercised enough diligence to learn the defendant's whereabouts or complete personal service. A judgment can fail if that diligence was lacking.
Source & verification. Rule text and the official Notes and Comments are reproduced verbatim from the
Texas Rules of Civil Procedure (Tex. R. Civ. P. 109), published by the Texas Judicial Branch (txcourts.gov).
Promulgated by the Supreme Court of Texas. The plain-English summary is original and draws on official sources. Last verified June 28, 2026. ·
Official source
Also known as:citation by publicationservice by publicationunknown residencediligenceTRCP 109