§ 17.044.Substituted Service on Secretary of State

The fallback that makes the long-arm statute work when the nonresident cannot be served directly.

Subsection (a) covers three cases. The secretary of state is an agent for service on a nonresident who: is required to designate or maintain a resident agent, or engages in business here, but has not designated or maintained one; has one or more resident agents but two unsuccessful attempts have been made on different business days to serve each agent; or is not required to designate an agent but became a nonresident after a cause of action arose here and before it was matured by suit.

The second route is precise and worth following exactly: two attempts, on different business days, on each agent. A single failed attempt does not open this door, and neither do two attempts on the same day.

The third addresses the defendant who leaves. A person who was here when the claim arose cannot escape by moving away before suit.

Subsection (b) is separate and broader. The secretary is an agent for service on a nonresident who engages in business in this state but does not maintain a regular place of business or a designated agent here, in any proceeding arising out of that business.

Subsections (c) and (d) follow the defendant through death and incapacity. After the death of such a nonresident, the secretary is agent for service on the nonresident's administrator, executor, or personal representative — and if none is appointed, on an heir as determined by the law of the foreign jurisdiction. If the nonresident is judged incompetent, the secretary is agent for service on a guardian or personal representative.

Those provisions close a gap that would otherwise be fatal: a claim against a nonresident who dies before suit, with no Texas administration and no Texas representative to serve.