law-substituted-service-of-citation (TRCP 106)

law-substituted-service-of-citation | TRCP 106 Service for alternative method of service of process | citation |
sufficiency of service of civil process |

Rule 106(b) authorizes a court to order substituted service of process upon a proper showing that the
plaintiff has been unable to serve the defendant through any default method listed in Rule 106(b). Tex.
R. Civ. P. 106(b). When a court orders substituted service under Rule 106(b), the order itself provides
the only authority for the substituted service. Berkefelt v. Jackson, No. 01-07-00526-CV, 2008 WL
4530693, at *1 (Tex. App.—Houston [1st Dist.] Oct. 9, 2008) (mem. op., not designated for
publication). As a result, “any deviation from the trial court’s order necessitates a reversal of the
default judgment based on service.” Id. (citing Becker v. Russell, 765 S.W.2d 899, 900 (Tex. App.—
Austin 1989, no writ)).

RULE 106 CITATION & SERVICE OF PROCESS

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 TRIAL COURT 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.

Hudson & Keyse, LLC v. Gipson (Tex.App. - Houston [1st Dist.] Jan. 31, 2008)(Jennings)(credit card debt suit,
DWOP, substitute service)
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jennings
Before Chief Justice Radack, Justices Jennings and Bland
01-07-00380-CV Hudson & Keyse, L.L.C. v. Lavern W. Gipson and Emmett Gipson
Appeal from County Civil Court at Law No 1 of Harris County (Hon. Jack Cagle)

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 TRIAL COURT 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, real estate
law, deed, constable sale, set aside)
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Terry Jennings
Before Justices Nuchia, Jennings and Higley
01-06-00068-CV Marrot Communications, Inc. v. Town & Country Partnership d/b/a Town & Country Village-
Appeal from 61st District Court of Harris County (Hon. John Donovan)

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