§ 104.005.Service of Process or Timely Notice to Attorney General Required

A notice condition, and it is the provision most likely to defeat an otherwise good claim to indemnification.

The state is not liable for the defense of an action or for damages, court costs, or attorney’s fees unless one of two things is true.

Either the attorney general has been served in the case and the state has been given an opportunity to defend, or the person against whom the action is brought delivers to the attorney general all process served on the person not later than the 10th day after the date of service.

Ten days is short, and the consequence of missing it is total. A covered employee who is served, hands the papers to their own lawyer, and forwards them to the attorney general three weeks later has lost the indemnification.

"All process served on the person" is the requirement, not a summary or a notification — the documents themselves.

The condition exists because the state is being asked to pay and to defend. An office that learns of a case after a default, or after positions have been taken by other counsel, cannot conduct the defence it is obliged to provide.

The first alternative covers the case where the state was served directly, so a person sued alongside the state need not duplicate what the plaintiff has already done.

"An opportunity to defend" is part of that first route, so service alone is not enough if the state was then excluded from the case.

The criminal defence provision is expressly excepted, which makes sense — there is no civil process to forward, and that section has its own application procedure.

The practical instruction for anyone covered is simple: on being served, send the papers to the attorney general at once and keep proof of when.