What Happens If Not All Defendants Are Served In Texas ?

Rule 161 of the Texas Rules of Civil Procedure provides that where only some defendants are served, a plaintiff may dismiss the unserved parties without prejudice, obtain new service of process, or obtain a severance. Knie did not pursue any of those options. This procedural posture is not without precedent. In Osborne v. St. Luke's Episcopal Hosp., 915 S.W.2d 906, 909 (Tex.App.--Houston [1st Dist.] 1996, writ denied), the trial court rendered a purportedly final summary judgment in favor of nine defendants. Although the judgment made no disposition of eight other defendants on whom service was not obtained, the First Court of Appeals held the judgment final, stating the applicable rule that "the case stands as if there had been a discontinuance as to the parties not served." Id. at 909 (citing Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962); Moody v. Smoot, 78 Tex. 119, 14 S.W. 285, 287 (1890); and Ballard v. Portnoy, 886 S.W.2d 445, 446 (Tex.App.--Houston [1st Dist.] 1994, no writ)).