"FLUSH OUT" Letter... Not Recommended For Use In Texas

November 5, 2016

It has recently come to the attention of the directors of the CPSAT that the use of "Flush Out"
letters by private process servers in Texas is evidently on the rise.  Below is an example of
one common format that was forwarded to our office.  However, the CPSAT does not
condone this practice and the use of such letters is not recommended for several reasons.

First and foremost, the majority of process served in Texas are citations and other writs
issued by the District, County and Justice courts of Texas.  Virtually all may be served by
substituted or alternate means if the person avoids.  The process server only has to make an
adequate number of diligent attempts and verify the address.  Courts routinely issue
substituted/alternate orders when necessary.  Service in person is preferred, but, since it is
not the only means, a "Flush-Out" letter is not essential to successful service in Texas.

More importantly, the example below is not just questionable, but factually incorrect.  For
example, it threatens the possibility of service "by means of break-in by a Sheriff..."  In Texas,
this could only possibly refer to forcible entry and detainer (fed) service in relation to an
eviction or foreclosure.  Private process servers in Texas do not serve fed citations except in
extremely rare circumstances.  The author of the letter below uses this extremely remote
possibility as a blanket statement that almost assuredly does not apply to the process
actually being attempted.  It is designed to scare and fool the reader into thinking such a
"break-in" service could happen to them.  There are many other reasons why this letter is a
bad idea; and it does much more to scare off the person and delay service in general.

Process servers must resist any temptation to use trickery, lies, threats, guile or deception to
serve process.  Such tactics are not necessary to be a successful process server in Texas;
and the use of "Flush-Out" letters is not professional and not recommended.  The best
method of service in most cases is an honest, informative, and straight-forward approach.  
More often than not, once a person realizes why you are trying to contact them, they will
usually cooperate.


EXAMPLE OF "FLUSH OUT" LETTER-  
USE IS NOT RECOMMENDED:

Ref: ________________

Notice to Evader

    You are hereby notified that service of legal documents is being attempted upon you by a
Process Server Certified by the Texas Supreme Court – Judicial Branch Certification
Commission.  A Certified Process Server has the same authority as the Sheriff and Constable.

    It is the opinion of the person who is attempting service that you are potentially avoiding
service.  That may be incorrect; if our determination is in error, please call our Texas office at
(XXX) XXX-XXXX, only between the hours of 10:00AM - 4:30PM, Monday - Friday.  Ask for the
Process Manager.

    To avoid additional costs to you and to avoid embarrassment which might result from
serving you at your place of employment or during a time when others may be present, please
call our office within 24 hours to arrange a convenient time for service.

    We are not permitted to answer specific questions on the phone regarding the case.
Further, we will not discuss the matter with anyone who calls on your behalf, including an
attorney, due to the confidential nature of these proceedings.  We do not give legal advice and
we are not involved in the issues related to the dispute.

    Our fees for serving the documents are Court costs and are added to any Judgment that is
obtained against you.  It is in your interest to avoid additional costs as a result of your failure
to cooperate with this attempt to deliver the documents.

    Should it become necessary, due to your documented failure to respond, the Court may
award costs against you for any or all of the following:

•        Stake-out of your home or business by a licensed private investigator or registered
process server;
•        Service at your place of employment by leaving the documents with the person in
charge of the business;
•        Service at your residence by leaving the documents with any member of the household
at least 18 years of age;
•        Investigative costs to determine another place for service;
•        Service by publication in a local newspaper;
•        Service by means of break-in by a Sheriff, upon Court Order;
•        Or, any other alternative legal means of service.

    We emphasize strongly the importance that you contact our office within 24 hours.  Your
failure to do so will further document your intention to avoid service.  Such action may be
reported to the Court in our declaration or affidavit and result in additional costs to you.

    This notice is NOT sent to you by a collection agency.  It originates from a Certified Process
Server who is authorized, by Texas law, to take all necessary steps to complete service of
process.

    No further notice will be given prior to us taking one or more of the above-mentioned
steps.  Your prompt response is anticipated.

Federal Law, Title 18 U.S.C. § 1501, provides in relevant part:

“Whoever knowingly and willingly obstructs, resists or opposes any officer of the United
States, or other person duly authorized, in serving, or attempting to serve or execute, any
legal or judicial writ or process of any court of the United States...shall, except as otherwise
provided by law, be fined not more than $300 or imprisoned not more than one year, or both.”