law-citation | service of process | default judgments | restricted appeal | bill of review suit | Rule 106
citation | substituted service | defective citation or service of process
SERVICE OF CITATION CASELAW | DEFECTIVE SERVICE |
A default judgment cannot withstand a direct attack by a defendant who shows that he was
not served in strict compliance with the Texas Rules of Civil Procedure. Hubicki v. Festina,
226 S.W.3d 405, 408 (Tex. 2007); Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990);
McGraw-Hill, Inc. v. Futrell, 823 S.W.2d 414, 416 (Tex. App.—Houston [1st Dist.] 1992, writ
In contrast to the usual rule that all presumptions will be made in support of a judgment,
there are no presumptions of valid issuance, service, and return of citation when examining
a default judgment. Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885
(Tex. 1985); McGraw-Hill, 823 S.W.2d at 416.
Jurisdiction over the defendant must affirmatively appear by a showing of due service of
citation, independent of the recitals in the default judgment. Faggett v. Hargrove, 921 S.W.
2d 274, 276 (Tex. App.—Houston [1st Dist.] 1995, no writ); Mass. Newton Buying Corp. v.
Huber, 788 S.W.2d 100, 102 (Tex. App.—Houston [14th Dist.] 1990, no writ).
Service is invalid if the name on the return alters the identity of the defendant, but a minor
change in the name does not render the return defective. See Tex. R. Civ. P. 107; Lytle v.
Cunningham, 261 S.W.3d 837, 840-41 (Tex. App.-Dallas 2008, no pet.); Brown-McKee,
Inc. v. J.F. Bryan & Assocs., 522 S.W.2d 958, 959 (Tex. Civ. App.-Texarkana 1975, no writ).
Rule 106 Citation & Service
Texas Rule of Civil Procedure 106 authorizes a court to order a substitute method of
service. Tex. R. Civ. P. 106(b). “Where citation is executed by an alternative method as
authorized by Rule 106, proof of service shall be made in the manner ordered by the court.”
Tex. R. Civ. P. 107. When a trial court orders substituted service under Rule 106, the only
authority for the substituted service is the order itself. Dolly v. Aethos Commc’ns Sys., Inc.,
10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.); Broussard v. Davila, 352 S.W.2d
753, 754 (Tex. Civ. App.—San Antonio 1961, no writ). Because the trial court’s order is
the sole basis of authority authorizing substituted service, any deviation from the trial court’s
order necessitates a reversal of the default judgment based on service. Becker v. Russell,
765 S.W.2d 899, 900 (Tex. App.—Austin 1989, no writ).
Berkefelt v. Jackson (Tex.App.- Houston [1st Dist.] Oct. 9, 2008)(Bland)
(SAPCR default judgment set aside, defective service)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Justices Jennings, Hanks and Bland
01-07-00526-CV Randall Earl Berkefelt v. Diane Lynne Jackson
Appeal from 300th District Court of Brazoria County
Trial Court Judge: Hon. K. Randal Hufstetler
The trial court’s order amounted to the only legal authorization for Jackson’s actions. When
Jackson failed to strictly follow the order, she violated Rule 106 of the Texas Rules of Civil
Procedure. See Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 752 (Tex. App.—Fort Worth 2003,
no pet.) (holding that service was invalid when return of service stated citation and petition were left
on door contrary to trial court’s instructions requiring citation, petition and court order to be placed
on door). Violation of Rule 106 makes the service of process invalid and of no effect. See
Wilson, 800 S.W.2d at 836. Defective service of process removes the trial court’s jurisdiction over
the defendant. See id. (holding that jurisdiction is dependent upon citation issued and served in a
manner provided for by law). Because service was defective in this case, the trial court lacked
jurisdiction to grant the default judgment.
Edison v. Houston Police Department (HPD) (Tex.App.- Houston [1st Dist.] Jun. 7, 2007)(Bland)
(pro se DWOP)(prisoner suit, pro se, lack of diligence in securing service of citation)
AFFIRM TC JUDGMENT: Opinion by Justice Bland
Before Justices Nuchia, Hanks and Bland
01-06-00552-CV Cedric Christopher Edison v. Houston Police Department, et al
Appeal from 157th District Court of Harris County (Judge Randy Wilson)
Alazov . Chmeleva (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(per curiam)(default divorce,
substituted service, notice of appeal untimely, no jurisdiction to entertain appeal)
Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town & Country Village (Tex.App.
- Houston [1st Dist.] May 31, 2007, pet . denied 10/26/07)(Jennings)(substituted service on the
Secretary of State was defective and the default judgment in this case cannot stand)(default
judgment, defective service of process, real estate law, deed, constable sale, set aside)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion
by Justice Jennings
Before Justices Nuchia, Jennings and Higley
01-06-00068-CV Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town &
Appeal from 61st District Court of Harris County (Hon. John Donovan)
Party in divorce proceeding cannot bring restricted appeal: signature on the final
decree constituted participation Chakey v. Chakey (Tex.App.- Houston [1st Dist.] May 17,
2007)(Nuchia) [family law, SAPCR, waiver of citation, agreed decree]
DISMISS APPEAL: Opinion by Justice Nuchia
Before Justices Nuchia, Hanks and Bland
01-06-00848-CV Elizabeth Marie Chakey v. Zachary R. Chakey, Jr. and Dawn A. Chakey
Appeal from 312th District Court of Harris County (Hon. James D. "Jim" Squier)
Heggen v. Graybar Electric Co. (Tex.App.- Houston [14th Dist.] Jan. 9, 2007)(Yates)
[default judgment, sufficiency of service, defective service of citation)
AFFIRMED: Opinion by Justice Brock Yates
Before Chief Justice Hedges, Justices Brock Yates and Seymore
14-06-00058-CV Allen Heggen and Paula Heggen v. Graybar Electric Company, Inc.
Appeal from 234th District Court of Harris County (Judge Reese Rondon)
Harveston Securities Inc. v. Narnia Investments Ltd. (Tex.App.- Houston [14th Dist.] Jan. 11, 2007)
(Frost) (restricted appeal, default judgment, sufficiency of service of process)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Anderson, Edelman and Frost
14-05-00206-CV Harveston Securities Inc. v. Narnia Investments L.T.D.
Appeal from 270th District Court of Harris County
Dissenting Opinion by Justice Edelman In Harveston Securities Inc. v. Narnia
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