Tex. Bus. Orgs. Code Ann. § 5.251.
Investment company was not required to make at least one attempt to serve limited liability construction company (LLC) at the address of its registered agent prior to serving the Secretary of State with process; process server had learned only three days prior to receiving the process in this case that the address LLC provided to the Secretary of State for its registered agent did not exist, and making a service attempt on a non-existent address would have been futile. Acadian Properties Austin, LLC v. KJMonte Investments, LLC (Tex.App.-El Paso 2021) 2021 WL 3260942. Investment company was not required to attempt service at a known alternative address of the registered agent of limited liability construction company (LLC) prior to serving the Secretary of State with process, where service-of-process at the registered agent’s address would have been futile because the registered address was “non-existent.” Id; See also Ingram Indus., Inc. v. U.S. Bolt Mfg., Inc., 121 S.W.3d 31, 34 (Tex.App.–Houston [1st Dist.] 2003, no pet.) (noting that one attempt at service constitutes reasonable diligence when it is clear from the record that future attempts would be futile, where it was learned the location had been occupied by some other person or entity for ten years); In accord with Ingram G.F.S. Ventures, Inc. v. Harris, 934 S.W.2d 813, 816-17 (Tex.App.–Houston [1st Dist.] 1996, no pet.). A plaintiff is only required to attempt service-of-process at the address given to the Secretary of State prior to serving the Secretary of State with process, and need not make any attempt to serve the defendant elsewhere. Id.
Only after the registered agent of a corporation cannot be found with reasonable diligence at the registered office can the Secretary of State act as agent of the corporation for service of process. Paramount Credit, Inc. v. Montgomery (App. 1 Dist. 2013) 420 S.W.3d 226. Making a single attempt to serve process at the registered agent’s address may be sufficient in some circumstances to demonstrate reasonable diligence, but the record must reflect that there was at least one such attempt before service on the Secretary of State is proper. Acadian Properties Austin, LLC v. KJMonte Investments, LLC (Tex.App.-El Paso 2021) 2021 WL 3260942; but see In re FDB Pools, Inc. (App. 7 Dist. 2018) 541 S.W.3d 391, rehearing and rehearing en banc denied, mandamus denied(defendant’s address misspelled by one letter, and was easily identifiable by a web search).
The record for reasonable dilligence can be made outside of the pleadings. Acadian Properties Austin, LLC v. KJMonte Investments, LLC (Tex.App.-El Paso 2021) 2021 WL 3260942. The record should contain allegations of requirements that defendant maintain a Texas office, if such is the case. Bank of New York v. Chesapeake 34771 Land Trust (App. 8 Dist. 2015) 456 S.W.3d 628, rule 53.7(f) motion filed, rule 53.7(f) motion granted, petition for review filed, review denied.
When service upon the Secretary of State occurs due to an entity’s registered agent being unable to be found with reasonable diligence at the registered office of the entity, the certificate of the Secretary of State constitutes conclusive evidence that process was served upon the entity. Pirate Oilfield Services, Inc. v. Cunningham (App. 11 Dist. 2021) 2021 WL 1033976.
There are instructions on the Secretary of State’s Website regarding how to serve an entity through the SOS. However, be aware that there is case law and statutory that is not mentioned on the SOS website. For example, in the case of a nonresident defendant, the plaintiff must accompany service upon the Secretary of State with a statement of the name and address of the home or home office of the defendant.
Consistent with these authorities, the court of appeals held that the default here could not be affirmed under the Long–Arm statute because nothing in the petition, citation, or return alleges that 920 King Street was Wachovia’s home or home office. Nevertheless, the court of appeals affirmed the default judgment on the ground that substituted service was proper under the Texas Business Corporation Act. But that statute requires the Secretary to forward service to a foreign corporation’s “principal office.” See Tex. Bus. Corp. Act art. 8.10(B). Nothing in the record shows 920 King Street was Wachovia’s principal office either.
Last known address does not substitue for home address. Verges v. Lomas & Nettleton Fin. Corp., 642 S.W.2d 820 (Tex. App.–Dallas 1982, no writ). The statement may either be in plaintiffs petition or in a separate document. See Public Storage Properties VII, Ltd v. Rankin, 678 S.W.2d 590, 593 (Tex. App.–Houston [14th Dist.] 1984, no writ); in accord Wachovia Bank of Delaware, N.A. v. Gilliam, 215 S.W.3d 848, 851 (Tex. 2007)(“Here, the petition, citation, return, and the certificate from the Secretary of State all listed Wachovia’s address as 920 King Street, Wilmington, Delaware; none alleged this was Wachovia’s home office, principal office, or anything else…As nothing in the record shows that the Secretary of State forwarded process to Wachovia’s home office or principal office as required by the statutes on which the plaintiffs rely, error is apparent on the face of the record.”)