No.04-15-00036-CV

IN THE FOURTH COURT OF APPEALS 

AT SAN ANTONIO

_______________________________

DAVID WAYNE THOMPSON

Appellant, 

vs. 

TRAVIS BAILEY AND LISA BAILEY,

Appellees

_________________________________________

On Appeal from the 38th Judicial District of Uvalde County, Texas 

(Trial Court Cause No. 2013-07-29422-CV)

________________________________________________ 

APPELLANT’S REPLY BRIEF

________________________________________________

 Rogelio M. Muñoz 

 State Bar No. 24044409

 Email: roy@swtexaslaw.com 

The Muñoz Law Firm 

 231 S. Getty St. 

 Uvalde, TX 78801 

 Tel:(830) 278 – 1150 

 Tel:(830) 278 – 1559 

 Counsel for Appellant 

ORAL ARGUMENT IS REQUESTED 

ACCEPTED

04-15-00036-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

4/17/2015 3:51:00 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 04/17/2015 3:51:00 PM KEITH E. HOTTLE Clerk
TO THE HONORABLE COURT OF APPEALS: 

STATEMENT OF THE REPLY

Appellant, David Thompson, (hereafter Mr. Thompson) files this reply to the 

Appellee’s Brief. 

REPLY ISSUES PRESENTED 

Reply Point Number 1: Service was defective. 

Reply Point Number 2: Trial court erred in conditionally granting the 

motion for new trial. 

ARGUMENT AND AUTHORITIES 

Reply Point 1: Service was defective. 

The Appellees, Lisa and Travis Bailey, (hereafter the Baileys) make several 

arguments in favor of valid service, but they are each without legal merit. 

I. First, the Baileys argue that service was valid because the process server, 

Mr. Olivarez, was authorized to serve under Tex. R. Civ. P. 103 (hereafter rule 

103) because he was a retired sheriff’s deputy. Essentially, they are asking the 

Court to interpret rule 103 to mean that retired sheriff’s deputies are expressly 

authorized to serve under rule 103. This argument is problematic for a very simply 

reason; that is not what the express language of rule 103 says. Rule 103 provides 

that, “service of process may be served by: (1) any sheriff of constable or other 

person authorized by law...” Tex. R. Civ. P. 103. Nothing in the rule authorizes 

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service by a retired sheriff’s deputy. The Baileys attached to their brief a standing 

order that authorized Mr. Olivarez that was signed on July 17, 2014. (See Tab I to 

Appellees Brief). That order took effect more than three months after Mr. Olivarez 

served the return. Not surprisingly, Mr. Olivarez requested a standing order from 

the trial court that gave him written authorization to serve after the motion for new 

trial was filed and his ability to serve was challenged. If Mr. Olivarez had been 

authorized to serve process under the express terms of rule 103 then there would

not have been a need to obtain written authorization from the trial court. 

II. Secondly, the Baileys argue that service was valid because the process 

server, Mr. Olivarez, was authorized to server under written order of the court in 

compliance with Tex. R. Civ. P. 103 (2). This argument fails because despite the 

Bailey’s contentions to contrary, no written order existed at the time of service that 

authorized Mr. Olivarez to serve process in this case. The Bailey’s claim that the 

trial court’s order granting substituting service, which authorized service by 

leaving a copy of the petition with anyone over 16 years of age, also authorized

Mr. Olivarez to serve process. The Baileys argue that because their motion for 

substituted service was supported by an affidavit made by Mr. Olivarez, and

because the trial court granted the motion for substituted service, the order granting 

substituted service should be read to give requisite written authorization to Mr. 

Olivarez to serve process. 

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This argument fails for several reasons. First and most significantly, the order 

granting substituted service did not either expressly or impliedly authorize Mr. 

Olivarez to serve process. The order merely authorized an alternate method of 

service; it did not give Mr. Olivarez authorization to serve process. (CR 29).

Another problem with this position is that the motion for substituted service did not 

ask the trial court for written authorization for Mr. Olivarez to serve process. 

Instead, the motion only asked for authorization to serve Mr. Thompson by leaving 

a copy of the petition with someone over 16 years of age at his residence. (CR 26).

As a consequence, the order granting substituted service did only what the Baileys 

requested in their motion, which was authorization for an alternate method of 

service. Another problem with this argument is that, at the hearing on the motion 

for new trial, counsel for the Baileys never raised this argument. It is only logical 

that if the order authorizing substituted service was intended to give written 

authorization to Mr. Olivarez, the issue would have been raised by counsel for the 

Baileys. 

III. Third, the Baileys argue that the trial court’s order granting new trial 

constituted an affirmative amendment to return, which thereby authorized Mr. 

Olivarez to serve in this case. In support of this position, the Baileys cite

Higginbotham vs. General Life and Acc. Ins. Co., 796 S.W.2d 695 (Tex. 1990). 

Higginbotham is inapposite the instant case because it dealt with a very different 

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factual situation. In Higginbotham, the applicable law required service during 

regular business hours and the return showed service at 12:01 p.m., but it did not 

state that the businesses’ hours included that particular time. Id. After a default 

judgment was obtained, the defendants filed a motion for new trial and the trial 

court denied the motion. The Supreme Court found that the trial court, in finding 

that service was proper under the quoted provision of the statute also found that 

service was made “during business hours” and in so doing it implicitly amended 

the citation without need for an amended citation. Id. Higginbotham is not 

pertinent to instant case because there service was in fact properly perfected. The 

only issue was an ambiguity as to whether the time of service “12:01p.m.” was 

during regular business hours. The trial court found that the time of service 

occurred during normal business hours which thereby validated service. Thus, in 

Higginbotham the trial court only made an evidentiary determination that clarified 

the facts stated in the return. By clarifying the language in the return the Supreme 

Court found that the trial court implicitly amended it. Higginbotham is therefore 

applicable on the issue of whether a trial court can implicitly amend a return of 

service. 

By contrast, here the issue is not whether the return of citation itself is 

sufficient, but whether the individual who served the citation was authorized by 

statute. Here, the trial court could not have amended the return because the person 

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who served citation was not authorized to serve under rule 103. Unlike in 

Higginbotham, here service was completely defective because Mr. Olivarez was 

not authorized to serve. Finally, unlike in Higginbotham, here the trial court made 

no findings that Mr. Olivarez was authorized to serve process which could be 

implied as amendment to the return. 

IV. In the Baileys final argument in favor of valid service they claim that 

because Mr. Thompson appeared before the trial court after the motion for the new 

trial was granted, he had acquiesced to the jurisdiction of the trial court which 

thereby rendered any arguments regarding service moot. This argument also fails 

because, even though Mr. Thompson entered a general appearance after the default 

judgment was rendered, it does not negate the fact that when the default judgment 

was obtained the trial court was without jurisdiction. The trial court did not have 

jurisdiction to render the default judgment because there was improper service. 

The fact that the trial court later acquired jurisdiction does not change the fact that 

the default judgment was void. If the default judgment was void then the trial court 

was without power to restore it. 

Reply Point Number 2: Trial court erred in conditionally granting the motion 

for new trial.

I. The Baileys contend that when the trial court modified its order granting 

new trial, by making it conditionally granted upon the payment of fees, the trial 

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court had personal jurisdiction because Mr. Thompson had made a general 

appearance. Mr. Thompson does not dispute that, after he appeared in the case, he 

submitted himself to the jurisdiction of the court. That does not change the fact 

that the default judgment was entered without proper service. Without proper 

service the trial court never acquired jurisdiction to enter the default judgment. 

Thus, even if the trial court had jurisdiction after Mr. Thompson appeared it still 

did not give it authority to reinstate a void judgment. 

II. The Baileys next contend that the trial court has authority to conditionally 

grant a new trial upon specific terms. As stated in Mr. Thompson’s brief, he does 

not dispute the general principle that a trial court can in some instances 

conditionally grant a motion for new trial. But here the trial court was without 

power to do so. This is because service was defective, and without valid service 

the trial court never acquired personal jurisdiction to enter a default judgment. As 

a consequence, the default judgment was void, and it logically follows that a trial 

court cannot reinstate a void judgment. 

CONCLUSION AND PRAYER

For these reasons, Mr. Thompson requests that this court reverse the trial 

court, vacate the default judgment, and order a new trial. 

Respectfully Submitted,

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/s/ Rogelio M. Muñoz 

Rogelio M. Muñoz

State Bar Number: 24044409

The Muñoz Law Firm

231 South Getty Street

Uvalde, Texas 78801

Telephone: (830) 278-1150

Fax: (830) 278-1559

Attorney for the Appellant,

David Wayne Thompson 

CERTIFICATE OF SERVICE

I certify that I have served this reply brief by mailing a copy on the 17th day 

of April, 2015, to the following counsel of record: 

Mr. Paul J. Tarski 

205 N. Getty St. 

Uvalde, TX 78801 

Tel: 830 278 2544 

Fax 830 278 7316 

email: paul@tarskilaw.com

/s/ Rogelio M. Muñoz 

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