The Waiver of Service is most commonly executed in uncontested cases in which the parties are actively working together to reach an agreement. However, when considering whether or not to sign and execute a Waiver of Service you should contemplate the likelihood that your legal rights will be protected throughout your case since some Waivers of Service may contain provisions that waive certain rights you may normally have.
For instance, by signing a Waiver of Service you may be waiving your right to sign and approve a final order before the Court enters a judgment. You could be waiving your right to have a court reporter make a record of the proceedings. You could be waiving your right to determine if an associate judge or district judge will be hearing your case. You may be waiving your right to receive an amended petition, motion or other pleading. You could be waiving the right to be notified of the date, time and location of hearing or trial. For these reasons, it is very important for you to be aware of how a Waiver of Service may be beneficial or harmful to your case. To be certain it is a good idea to have an Attorney review the Waiver of Service before executing it.
A Waiver of Service is originally intended to waive the requirement of service, however, as discussed above you could be waiving other legal rights. Therefore, if you are presented with a Waiver of Service to sign, you should first read the Waiver in its entirety. Surprisingly, many individuals who have signed Waivers did not fully read nor understand the document. Signing a legal document that you do not understand or read in full could be consequential in the preservation of your rights in your legal case. Second, you should check to make sure the petition, motion or pleading to which the Waiver of Service applies is enclosed or attached to the Waiver of Service. Once you confirm that the correct document is attached or enclosed you should also read that petition, motion or pleading
You should remember that you should not feel pressured in any way to sign and execute a Waiver of Service. Just because you may have been presented with a Waiver or advised by the Petitioner or Plaintiff to the lawsuit that it is in your best interest to sign the Waiver, you should only sign the Waiver if you are confident that it is beneficial to you. In addition, you should only sign the Waiver if you know what rights you have preserved and what rights you are waiving because at the end of the day, if you choose to forego signing the Waiver, the likely consequence is that the Petitioner or Plaintiff will have to move forward with service.
In Texas, formal service of process is required for every case unless a properly executed Waiver of Service is on file with the Court. Formal service must be effectuated by a sheriff, constable or a licensed process server. The Petitioner or Plaintiff to a lawsuit can not simply give you the documents and consider that formal service of process. The Court wants to ensure that a Defendant or Respondent to the lawsuit has been given legal notice that a lawsuit has been filed. Courts can not finalize a lawsuit by default or move forward with a hearing unless there is proof of service. Proof of service means that a return of service document must be on file with the court confirming that the Defendant or Respondent has received proper notice of the suit.
In sum, when considering whether or not you should sign a Waiver of Service, you should read the Waiver, read the petition, motion or pleading attached to the Waiver and carefully determine with the assistance of legal counsel if it would be beneficial for you and your case to execute it. The decision to execute a Waiver of Service is an important one that can set the tone for your entire case, therefore, it should not be taken lightly.