Rule 106 and its Opposite

To authorize substituted service under Tex. R. Civ. P. 106(b), the plaintiff must establish a location where the defendant can “probably be found.” Applying that rule in a restricted appeal, Copa Room LLC v. MM Mercer Boardwalk LLC reminds that when a process server’s affidavit describes failed attempts to locate the defendant, that evidence may well show only where the defendant can probably not be found:

Hale’s declaration does not state or suggest any location where the defendant “[could] probably be found.” Instead, his declaration listed four unsuccessful service attempts suggesting that the addresses where service was attempted were not, in fact, places where Hulme could probably be found. Mercer’s unsworn motion states that service was attempted at “four business addresses associated with Defendant Hulme,” citing Hale’s declaration in support. However, even assuming “business addresses associated with” a defendant is equivalent to a place the defendant “can probably be found,” Hale’s declaration does not state that any of the addresses are currently associated with Hulme. Instead, the declaration indicates that each of the locations were vacant or had businesses unassociated with Hulme.

No. 05-24-01428-CV (April 3, 2026) (citations omitted).