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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

BALDEV SINGH and CARGO ZONE 

TRANSPORT,

Appellants,

v.

GALLAGHER BASSETT, L.L.C., as 

subrogee of WILLIAM MCSWAIN AND 

SWIFT TRANSPORTATION CO., INC.,

Appellee.

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No. 08-20-00137-CV

Appeal from the

County Court at Law

of Culberson County, Texas

(TC# 1307)

MEMORANDUM OPINION

Appellants Baldev Singh and Cargo Zone Transport and Appellee Gallagher Bassett, 

L.L.C. have filed an agreed motion to dismiss this appeal. In their motion, the parties agree that a 

final default judgment made by the County Court at Law of Culberson County was rendered in 

error because “the record contained no certified documents from the Secretary of State and the 

Chairman of the Transportation Commission showing completion of service through mailing of 

the citation to Appellants Baldev Singh and Cargo Zone Transport in California.” In light of this 

purported error, the parties have reached a settlement agreement and ask this Court to reverse and 

set aside the final default judgment and remand this matter for a new trial.
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Because the parties request that we set aside the judgment below and remand the case for 

a new trial, the motion is not a motion to dismiss an appeal under Rule 42.1(a)(1). Rather, it is a 

Rule 42.1(a)(2) motion, and we treat it as such. Under Rule 42.1(a)(2) of the Texas Rules of 

Appellate Procedure, an appellate court can dispose of an appeal in accordance with an agreement 

signed by the parties or their attorneys by rendering a judgment effectuating that agreement. 

TEX.R.APP.P. 42.1(a)(2). However, in cases such as this one in which both parties seek affirmative 

relief based on conceded error, “the rule does not permit an appellate court to order a new trial 

merely on the agreement of the parties absent reversible error.” In re J.A.B., No. 08-06-00201-

CV, 2007 WL 2274671, at *1 (Tex.App.--El Paso Aug. 9, 2007, no pet.) (mem. op., not designated 

for publication). We must review the record independently to confirm the existence of reversible

error under these circumstances. Id.

Here, Appellee concedes that rendition of a default judgment was error under these 

circumstances because Appellants never received proper notice. In the original petition, it is 

alleged that Appellant Singh is a California resident and Appellant Cargo Zone Transport is a 

California corporation with its principal office located in Fontana, California. The record contains 

an affidavit in which a process server averred that he served Singh with citation and the original 

petition on July 3, 2019, by delivering service to the Chairman of the Texas Transportation 

Commission “by delivering to the Texas Department of Transportation's Office of General 

Counsel” by and through an administrative assistant. See TEX.CIV.PRAC. & REM.CODE ANN.

§§ 17.062(a), 17.063 (permitting service in this manner when the defendant was party to a collision 

or accident while operating a motor vehicle in Texas). A second affidavit from a process server 

states that Cargo Zone Transport was served with citation and the plaintiff’s original petition “by 

delivering to THE TEXAS SECRETARY OF STATE, by and through its designated agent[.]” 
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See TEX.CIV.PRAC. & REM.CODE ANN. §§ 17.044(b), 17.056.

However, both parties concede that there is nothing in the record definitively confirming 

actual receipt by either entity, nor does the record show that the Texas Transportation Commission 

or the Texas Secretary of State then forwarded process to the California defendants or otherwise 

effectuated service such that the California defendants obtained actual notice of the proceedings 

in Culberson County. Without a certificate from the Secretary of State, or similar proof from the 

Texas Transportation Commission, proper service on the out-of-state defendants cannot be 

established on this record. See MC Phase II Owner, L.L.C. v. TI Shopping Ctr., L.L.C., 477 S.W.3d 

489, (Tex.App.--Amarillo 2015, no pet.) (finding substitute service invalid under similar facts 

where record only showed that citation was delivered to Secretary of State’s Office but there was 

no certificate showing receipt or the address where citation was subsequently mailed). We confirm 

the existence of reversible error on this record.

Therefore, pursuant to our authority under TEX.R.APP.P. 42.1(a)(2), we grant the agreed 

motion, reverse the judgment of the trial court, and remand for a new trial.

JEFF ALLEY, Chief Justice

August 31, 2020

Before Alley, C.J., Rodriguez, and Palafox, JJ.