in the Interest of J.D.H., E.K.H., Z.H.H., Children

In The
Court of Appeals
Seventh District of Texas at Amarillo
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No. 07-13-00293-CV
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IN THE INTEREST OF J.D.H., E.K.H. and Z.H.H., CHILDREN
On Appeal from the 100th District Court
Donley County, Texas
Trial Court No. 6931; Honorable Stuart Messer, Presiding
February 20, 2014
CONCURRING AND DISSENTING OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
The majority opinion thoroughly examines the circumstances surrounding the
termination of the parental rights of John and Andrea with respect to their three children,
J.D.H., E.K.H. and Z.H.H. For the most part, I agree with that analysis, and I concur
with the majority’s decision to affirm the termination of Andrea’s parental rights. I also
agree with the majority’s finding that adequate grounds exist for the termination of
John’s parental rights and the accompanying finding of best interests. Where I differ,
however, is with respect to whether the trial court ever had personal jurisdiction over
John. Finding that deficiency to be of a fundamental magnitude, I respectfully dissent
from the decision to affirm the termination of John’s parental rights.
In his original brief, John contended the trial court committed reversible error by
entering an Order for Substituted Service because that order provided that service of
process could be completed by serving his mother, a person interested in the outcome
of the case. The majority properly disposes of that argument. During oral arguments,
however, John’s attorney expanded his argument to include an argument that the trial
court lacked personal jurisdiction because the Order for Substituted Service was
entered in contravention of the requirements of Rule 106 of the Texas Rules of Civil
Procedure. Specifically, John’s attorney argued that the motion for substituted service
was defective because it did not “state specifically the facts showing that service has
been attempted under either [Rule 106](a)(1) or (a)(2) at the location named in such
affidavit . . . .” See TEX. R. CIV. P. 106(a)(1) (providing for service of citation by personal
delivery) and 106(a)(2) (providing for service of citation by mail). Following oral
arguments, John filed a motion seeking leave to file a “Supplemental Brief” which would
have supported the position taken during oral arguments. Following a response from
the Texas Department of Family and Protective Services, the majority denied John’s
motion.
Texas Rule of Civil Procedure 106(b) allows the trial court to sign an order
authorizing a substitute method of service of process, provided the movant files a
motion supported by proper affidavit. TEX. R. CIV. P. 106(b); Wilson v. Dunn, 800
S.W.2d 833, 834 (Tex. 1990). The supporting affidavit must state (1) the location of the
defendant's usual place of business or usual place of abode or other place where the
2
defendant can probably be found; and (2) the specific facts showing that traditional
service at the location named in such affidavit has been attempted, but has not been
successful. Failure to affirmatively show strict compliance with this rule renders the
attempted service of process invalid and of no effect. Whitney v. L & L Realty Corp.,
500 S.W.2d 94, 95-96 (Tex. 1973); Garrels v. Wales Transp., 706 S.W.2d 757, 758
(Tex. App.—Dallas 1986, no writ); Wilson, 800 S.W.2d at 836 ("Actual notice to a
defendant, without proper service, is not sufficient to convey upon the court jurisdiction
to render default judgment against him."). The record on appeal must contain all
elements that are essential to establishing compliance with the citation procedure,
leaving nothing to inference. Wachovia Bank of Delaware v. Gilliam, 215 S.W.3d 848,
850 (Tex. 2007). There are no presumptions favoring valid issuance, service, and
return of citation in the face of a direct attack on a default judgment. Wilson, 800
S.W.2d at 836 (quoting Uvalde Country Club v. Martin Linen Supply, Co., 690 S.W.2d
884, 885 (Tex. 1985) (per curiam)).
We are obligated to review jurisdictional issues sua sponte.1 Accordingly, I would
find that the trial court lacked personal jurisdiction over John and reverse and render
judgment accordingly.2
Patrick A. Pirtle
Justice
1
New York Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990)
2
In reaching this decision I reject the argument presented in footnote 5 of the majority opinion
finding that the appearance of court-appointed counsel somehow established the trial court’s personal
jurisdiction over John. A court cannot “create” jurisdiction merely by appointing an attorney to represent a
party who has never been properly served. Such a procedure would create a heretofore unknown
method of service of process: “Service by Appointment of an Attorney,” totally circumventing State and
Federal Due Process concepts of notice and service of process.
3