Opinion filed December 9, 2010

In The

Eleventh Court of Appeals 

__________

No. 11-09-00356-CV

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BUSINESS STAFFING, INC., Appellant

V.

RICARDO GONZALEZ, Appellee

On Appeal from the 70th District Court

Ector County, Texas

Trial Court Cause No. A-127,990-A

O P I N I O N

Appellant, Business Staffing, Inc., appeals from a default judgment in favor of appellee, 

Ricardo Gonzalez. In two issues, Business Staffing contends (1) that the trial court lacked 

jurisdiction to enter the default judgment because the return of service was defective and (2) that 

the trial court erred in denying its motion for new trial because it met all the requirements of the 

Craddock1test. We reverse and remand.

 

1

Craddock v. Sunshine Bus Lines, 133 S.W.2d 124 (Tex. 1939).
2

We note that this case is not a restricted appeal. In restricted appeals, “review is limited 

to errors apparent on the face of the record.” Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 

186 S.W.3d 571, 573 (Tex. 2006). By contrast, when a party attacks a default judgment with a 

motion for new trial, as Business Staffing did in this case, or a bill of review in the trial court, the 

record is not so limited. In such cases, the parties may introduce evidence in the trial court “to 

explain what happened.” Id. at 574; Marrot Commc’ns, Inc. v. Town & Country P’ship, 227 

S.W.3d 372, 379 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). This evidentiary process 

allows the parties to address and develop the Craddock or bill of review elements in the trial 

court. Marrot, 227 S.W.3d at 379. 

Strict compliance with the rules governing service of citation is mandatory if a default 

judgment is to withstand an attack on appeal. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 

254, 256 (Tex. 2009); Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). 

Virtually any deviation from the rules regarding proper service of process will result in the 

setting aside of a default judgment. Mansell v. Ins. Co. of the W., 203 S.W.3d 499, 501 (Tex. 

App.—Houston [14th Dist.] 2006, no pet.). “[F]or a default judgment to be properly rendered, 

the record must affirmatively show, at the time the default judgment is entered, either an 

appearance by the defendant, proper service of citation on the defendant, or a written 

memorandum of waiver.” Marrot, 227 S.W.3d at 378. Otherwise, the trial court does not have 

in personam jurisdiction to enter a default judgment against the defendant. Id.

The facts in this case are similar to the facts in Lejeune. In this case, Gonzalez requested 

the district clerk to serve Business Staffing by certified mail, return receipt requested. The clerk 

issued the citation. However, the clerk failed to note in a return of citation or service the day and 

hour that she received the citation for service on Business Staffing. Similarly, in Lejeune, the 

defendant was served by certified mail, but the district clerk failed to note in the return of citation 

the hour that the clerk’s office received the citation for service. Lejeune, 297 S.W.3d at 255-56. 

In Lejeune, the Texas Supreme Court explained that Rule 16 of the Texas Rules of Civil 

Procedure governs service of process in general. Id. at 256; see TEX. R. CIV. P. 16. Rule 16 

provides that “[e]very officer or authorized person shall endorse on all process and precepts 

coming to his hand the day and hour on which he received them.” Rule 105, which governs 

service of citation, states that “[t]he officer or authorized person to whom process is delivered 

shall endorse thereon the day and hour on which he received it, and shall execute and return the 
3

same without delay.” TEX. R. CIV. P. 105. In Lejeune, the court concluded that service of citation 

did not strictly comply with Rules 16 and 105 because the return of citation lacked the required 

notation showing the hour that the clerk received the citation for service. Therefore, the court 

held that the default judgment against the defendant could not stand. Lejeune, 297 S.W.3d at 

256. Likewise, in this case, because the district clerk did not endorse on a return the day and 

hour that she received the citation for service, the default judgment against Business Staffing

cannot stand. Lejeune, 297 S.W.3d at 256; In re Z.J.W., 185 S.W.3d 905, 907-08 (Tex. App.—

Tyler 2006, no pet.).

Gonzalez submitted an affidavit from the district clerk in response to Business Staffing’s 

motion for new trial. The affidavit provides further support for the conclusion that service of 

Business Staffing did not comply with Rules 16 and 105. In the affidavit, the clerk did not 

dispute the fact that she did not note on a return the day and hour that she received the citation 

for service. The clerk stated that the citation “was issued and created by the Ector County 

District Clerk’s Office on July 22, 2009” and “was received by the Ector County District Clerk’s 

Office upon its issuance on July 22, 2009 as reflected on the Citation.” However, the clerk made 

no mention of the hour that the clerk’s office received the citation for service. The record shows 

that Business Staffing had not been properly served at the time the trial court entered the default 

judgment. Lejeune, 297 S.W.3d at 256; Marrot, 227 S.W.3d at 379. 

Business Staffing’s first issue is sustained. Based on our ruling on Business Staffing’s 

first issue, we need not address its second issue. TEX. R. APP. P. 47.1.

The judgment of the trial court is reversed, and this cause is remanded for further 

proceedings consistent with this opinion.

TERRY McCALL

JUSTICE 

December 9, 2010

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.