law-service-of-citation-by-certified-mail | sufficiency of service of citation by alternative means | substituted
service of process |
SERVICE OF CITATION AND PETITION BY CERTIFIED OR REGISTERED MAIL
In his first point of error, Fellows contends that the trial court erred by rendering a default judgment against
him because service of process was defective.
A default judgment cannot withstand a direct attack by a defendant who shows that he
was not served in strict compliance with the rules governing service of process. Primate
Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994); Barker CATV Constr., Inc. v. Ampro, Inc., 989
S.W.2d 789, 792 (Tex. App.--Houston [1st Dist.] 1999, no pet.). There are no presumptions of valid issuance,
service, or return of citation when examining a default judgment. Silver, 884 S.W.2d at 152; Ampro, Inc., 989
S.W.2d at 792. Jurisdiction over the defendant must affirmatively appear by a showing of due service of
process, independent of recitals in the default judgment. Ampro, Inc., 989 S.W.2d at 792.
Texas Rule of Civil Procedure 106, which governs service of citation, provides, in pertinent part, that citation
must be served by delivering a copy of the citation and petition to the defendant, in person, or by "mailing to
the defendant by registered or certified mail, return receipt requested, a true copy of the citation with a copy
of the petition attached thereto." Tex. R. Civ. P. 106. When a citation is served by registered or
certified mail as authorized by Rule 106, the officer's return must "contain the return
receipt with the addressee's signature." Tex. R. Civ. P. 107.
Here, the record shows that service on Fellows was by a deputy constable on November 10, 2005, and that it
was "[e]xecuted at P.O. Box 36324 Houston, TX 77236, by mailing to . . . Kerry G. Fellows" by
"registered/CERTIFIED MAIL with delivery RESTRICTED TO ADDRESSEE ONLY." The return is signed by
the deputy and contains the return receipt. The record shows that "P.O. Box 36324 Houston, TX 77236" is
Fellows's address. The return receipt bears an illegible signature that Adams asserts, and Fellows does not
dispute, is Fellows's signature. Fellows contends that service was defective because the "Restricted Delivery"
box is not checked on the return receipt.
Rule 106 requires that citation be mailed to the defendant "by registered or certified
mail, return receipt requested," with a copy of the petition attached. Tex. R. Civ. P. 106.
Rule 106 no longer requires "restricted delivery." Fellows does not direct us to any authority, and we find
none, that currently holds that failure to check the box for restricted delivery on the return receipt constitutes
Accordingly, Fellows's first point of error is overruled.
Fellows v. Adams (Tex.App.- Houston [1st Dist.] Oct. 18, 2007)(Higley)(default judgment, service by certified
mail, insufficient proof of unliquidated damages)
Harveston Securities Inc. v. Narnia Investments Ltd. (Tex.App.- Houston [14th Dist.] Jan. 11, 2007)(Frost)
(restricted appeal, default judgment, sufficiency of service)
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
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)
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