"Service by publication," under Rule 109 Texas Rules of Civil Procedure, is the service of a summons or other judicial process upon an absent or nonresident defendant whose place of residence is either unknown or cannot be ascertained, by publishing the same as an advertisement in a designated newspaper, for the purpose of given said defendant actual notice of the litigation, as prescribed by the state statute.
Service by publication will not meet the Constitutional requirement of due process unless it is established that the location of the defendant is not ascertainable. The case file should contain an affidavit of a competent investigator that a thorough search for the defendant(s) has failed to disclose the defendant(s) whereabouts and that personal service or service by mail is not available.
The Court must inquire into the sufficiency of the diligence exercised in attempting to locate the defendant. Rule 113 Texas Rules of Civil Procedure, establishes the manner by which the owner of land can sue unknown heirs who might be entitled to claim title.
After a determination that service by publication was properly done according to the circumstances of the case and state statutes, an exception must be placed in Schedule B of all policies to be issued setting out any rights or remedies available to the absent party under the state statutes. The exception is not required if a review of the file indicates the rules were complied with and three years have passed since the order became filed.