In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-13-00293-CV 

________________________

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 
2

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 
3

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.