Rule 758.Where Defendant Is Unknown or Residence Is Unknown
Last verified June 28, 2026
In one sentenceRule 758 lets a partition plaintiff who states by affidavit that a defendant, or a defendant's residence, is unknown serve that defendant by publication, so the partition can proceed against unknown co-owners.
Full Text of Rule 758
If the plaintiff, his agent or attorney, at the commencement of any suit, or during the progress thereof, for the partition of land, shall make affidavit that an undivided portion of the land described in plaintiff's petition in said suit is owned by some person unknown to affiant, or that the place of residence of any known party owning an interest in land sought to be partitioned is unknown to affiant, the Clerk of the Court shall issue citation for publication, conforming to the requirements of Rules 114 and 115, and served in accordance with the directions of Rule 116. In case of unknown residence or party, the affidavit shall include a statement that after due diligence plaintiff and the affiant have been unable to ascertain the name or locate the residence of such party, as the case may be, and in such case it shall be the duty of the court trying the action to inquire into the sufficiency of the diligence so stated before granting any judgment.
End
Plain-English Summary
Rule 758 handles unknown co-owners. If the plaintiff, an agent, or the attorney states by affidavit — at the commencement of the suit or during its progress — that a defendant is unknown, or that a known defendant's residence is unknown, that defendant may be served by publication, allowing the partition to proceed against owners who cannot be located.
Frequently Asked Questions
How do you partition land when a co-owner can't be found in Texas?
Rule 758 allows service by publication on an affidavit that the defendant, or the defendant's residence, is unknown.
What must the affidavit say when a co-owner's residence is unknown under Rule 758?
That after due diligence, the plaintiff and the affiant could not find the owner's name or locate the residence.
Does the court just accept the affidavit under Rule 758?
No. The judge must independently check that the diligence described was enough before granting judgment.
Source & verification. Rule text and the official Notes and Comments are reproduced verbatim from the
Texas Rules of Civil Procedure (Tex. R. Civ. P. 758), 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: where defendant is unknown partitionservice by publication partitionunknown owner partition by publicationaffidavit unknown co-owner residenceTRCP 758