Affirmed and Opinion and Dissenting Opinion filed June 14, 2022.

In The

Fourteenth Court of Appeals

NO. 14-20-00867-CV

RAINER VON FALKENHORST III, Appellant

V.

GEORGE D. FORD JR. AND HARRIS COUNTY CHILDREN’S 

PROTECTIVE SERVICES, Appellees

On Appeal from the 313th District Court

Harris County, Texas

Trial Court Cause No. 2020-00690J

DISSENTING OPINION

If a trial court renders judgment on the merits of a petition for a bill of review

despite a complete lack of service on any defendant to the underlying final judgment, 

is the trial court’s order void under the Supreme Court’s decision in Peralta v. 

Heights Medical Center, Inc., 485 U.S. 80 (1988)? Can an individual or entity that 

was not a party to the underlying final judgment be a proper party to the billof-review proceeding? Is such an individual or entity even a “party” or an “appellee” 

at all if they are not served and do not appear in the bill-of-review proceeding?
2

While this case is weird, it raises important due-process questions which have 

not been briefed and which the majority does not address. While it appears to be an 

issue of first impression whether the lesson of Peralta—that a lack of personal 

jurisdiction may, if sufficiently severe, deprive the trial court of subject-matter 

jurisdiction—applies in the bill-of-review context, I see no reason why it would not, 

particularly given the extraordinary relief involved in a bill of review. See Alexander 

v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950) (“Because it is fundamentally 

important in the administration of justice that some finality be accorded to 

judgments, . . . bills of review seeking relief from judgments are always watched by 

courts of equity with extreme jealousy, and the grounds on which interference will 

be allowed are narrow and restricted[.]”) (quotation omitted). I dissent.

Appellant filed a petition for a bill of review but did not serve any of the 

named defendants.1 Appellant then filed a summary-judgment motion to which it 

1 Appellant named as defendants: “II. Parties to Case A) Mr. Patrick Scott Shelton (Ex 

Judge 313th Jud. Dist. . . . B) Mr. George Derlc Ford, Jr (Ex Director Of H.C.C.P.S. . . . C) Harris 

County Children Protective Service/ aka H.C.C.P.S Through Executive Director Mr. Joel Levine

. . . D) Jean Ann Spradling Hughes (Retired Judge . . . .” The majority court recognizes two of 

those defendants as “appellees.”

This raises obvious questions about the nature of an “appellee.” Can a person appear for 

the first time on appeal as an appellee when (1) the person was not served as a defendant, (2) did 

not appear in the trial court, and (3) was not a party to the trial court’s final judgment (in the final 

bill-of-review order they are merely in the style as “GEORGE D. FORD, JR., ET AL.”)? I do not 

see how these alleged appellees meet the definition of an appellee, i.e., a party to the underlying 

judgment adverse to appellant against whom an appellant seeks more favorable relief. See Tex. R. 

App. P. 3.1(c), 25.1(c) (defining appellee); Showbiz Multimedia, LLC v. Mountain States Mortg. 

Ctrs., Inc., 303 S.W.3d 769, 771 n.2 (Tex. App.—Houston [1st Dist.] 2009, no pet.). Perhaps that 

definition of appellee is incomplete, but the court offers no explanation why George D. Ford 

(whom “appellees” brief describes as the “former executive director of Harris County Protective 

Services for Children and Adults”) and “Harris County Children’s Protective Services” are 

properly appellees. Instead, the court has allowed nonparties to the underlying trial proceeding to 

appear as “appellees.” The fact that these nonparties may have filed a brief in this court does not 

change the analysis; rather, it indicates that they are properly treated as amici. See Tex. R. App. P. 

11 (amicus curiae briefs).

On appeal, “appellees” Ford and Harris County Children’s Protective Services, who are 

two of the four non-served and non-appearing “defendants” named in the petition, purport to 
3

appears no evidence was attached. After a hearing attended only by appellant,2the 

trial court signed a final order denying appellant’s bill of review on the merits.

3 The 

“specially appear” on appeal, stating, “As noted by the trial court, none of the listed defendants 

was served with citation. The first time the appellees became aware of Mr. Von Falkenhorst’s 

petition was when undersigned counsel’s office was listed as counsel for appellees and e-served 

on appeal. To any extent necessary, the appellees only specially appear here and object to the 

court’s exercising jurisdiction over them as they have never been provided proper notice of this 

suit. Tex. R. Civ. P. 120a.” I question whether a special appearance on appeal is possible. 

“Appellees” further state, “[T]here is no record in this case that the defendants were served with 

citation, appeared in any way, filed motions for summary judgment, or had any knowledge of 

appellant’s petition for bill of review.”

Regardless of whether a party may “specially appear” for the first time on appeal, does the 

appearance of Ford and Harris County Children’s Protective Services have any bearing on the trial 

court’s jurisdiction? Put differently, could the appearance of these parties on appeal retroactively 

grant the trial court subject-matter jurisdiction it previously lacked? First of all, I am aware of no 

authority that either of the parties on appeal could bind the Department of Family and Protective 

Services or any other party to the underlying final order of termination, namely the child and the 

mother, although that is a matter properly addressed in the trial court, not this court. Even setting 

that question aside, the actions of the “appellees” in this court could not possibly confer on the 

trial court jurisdiction it previously lacked, as “subject-matter jurisdiction is a power that exists by 

operation of law only, and cannot be conferred upon any court by consent or waiver.” Dubai 

Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (quotation omitted).

2 A notice from the court reporter indicates that a reporter’s record exists but no payment 

was made; accordingly, there is no reporter’s record before this court. The trial court’s docket sheet 

states: “Hearing on P’s MSJ on pet. for review: P appeared pro se; court finds it lacks jurisdiction 

based on lack of service, res judicata & statute of limitations.”

3 Appellant’s summary-judgment motion requests numerous forms of relief, including 

“over $50 Million dollars due to all the due process and constitutional violations.” The trial court’s 

order does not specifically state that it denied appellant’s summary-judgment motion. However, 

my reading of the summary-judgment motion indicates that the merits of that motion are 

immaterial to this appeal; accordingly, the trial court’s disposition of the motion for summary 

judgment is irrelevant.

I note, however, that it does not appear there was any procedural mechanism available for 

the trial court to render judgment on the merits of the bill of review. Our court has previously held 

that a trial court errs when it dismisses claims when there is “no motion or other procedural vehicle 

available to the trial court authorizing it to dismiss” the claims before it. Ward v. Lamar Univ., 484 

S.W.3d 440, 453 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Our court explained, “[i]n the 

absence of such authority, courts should rely on the adversary system of justice, which depends on 

the parties to frame the issues for decision and assigns to courts the role of neutral arbiter of the 

matters that the parties present.” Id. (citing Greenlaw v. United States, 554 U.S. 237, 243 (2008)); 

see also Gleason v. Coman, 693 S.W.2d 564, 567 (Tex. App.—Houston [14th Dist.] 1985, writ 

ref’d n.r.e.) (“[I]t is well established in Texas Courts that dismissal of a case is not proper on the 

court’s own motion. . . . To do so is error.”); Foster v. Foster, No. 02-20-00327-CV, 2021 WL 
4

trial court stated in the judgment that (1) “Plaintiff did not properly serve any of the 

named defendants with citation,” (2) “Plaintiff’s petition is barred by the applicable 

limitation periods,” and (3) “[P]laintiff has failed to show any evidence of extrinsic 

fraud that would toll the four-year statute of limitations.”

In essence, then, the trial court rendered judgment denying the bill of review

based on determinations regarding failure of service and the validity of a limitations 

defense on which no evidence was presented. The majority affirms this judgment.

While I agree with the majority that the issues appellant raises on appeal are 

meritless, it appears to me there are deeper due-process concerns raised by the trial 

court’s judgment. I am not aware of any authority that a trial court has the power to 

render judgment on a petition for a bill of review when no defendant has been 

served.

4 As explained by the Supreme Court, “a judgment entered without notice or 

2373329, at *6–7 (Tex. App.—Fort Worth June 10, 2021, pet. denied) (mem. op.) (applying 

reasoning of Ward and reversing trial court’s sua sponte dismissal of bill of review).

4 Even if the named defendants had been served, I note these defendants were not parties 

to the underlying judgment, and the parties to the underlying judgment were not named in this 

lawsuit. If parties to the underlying judgment are necessary to this lawsuit (as parties to the 

underlying judgment generally are), this suit is potentially an impermissible collateral attack. See 

Hunt v. Ramsey, 345 S.W.2d 260, 264 (Tex. 1961) (“It is the general rule that where a proceeding 

is instituted to vacate and set aside a judgment [by a bill of review], the parties to the judgment 

must be made parties to such proceeding; and unless this is done, the attack is a collateral one.”); 

see also Tex. R. Civ. P. 39 (joinder of persons needed for just adjudication). While the trial record 

on this issue is not developed, it is clear none of the parties to the underlying judgment were named 

as defendants to the bill of review, and it escapes me what interest the parties that were named 

might have in this bill-of-review proceeding. See Hunt, 345 S.W.2d at 264 (explaining that, in bill 

of review, “all parties whose interests are such that they would be, or might be, directly and 

materially affected are necessary parties”). Those other parties to the underlying final order of 

termination are, as above, the Department of Family and Protective Services, the child, and the 

mother. While there may be circumstances in which not all of the parties to the underlying lawsuit 

must be served in a bill-of-review proceeding, that does not appear to be the situation in this case. 

Cf. id. at 265 (“No reason appears for the necessity of joining those who have no interest in the 

result of the attack merely because they were parties to the original suit.”).

Moreover, I note that, while Child Protective Services is part of the Department of Family 

and Protective Services, the Family Code gives “the Department of Family and Protective 

Services” the specific statutory standing to file an original suit affecting the parent-child 

relationship, and it was the Department that filed the underlying lawsuit. Tex. Fam. Code Ann. 
5

service is constitutionally infirm.” Peralta, 485 U.S. at 84; see also Gray v. PHI 

Res., Ltd., 710 S.W.2d 566, 567 (Tex. 1986) (“It is a fundamental tenet of our law 

that a plaintiff must properly invoke the jurisdiction of a trial court by valid service 

of citation on a defendant.”). Based on Peralta, the Supreme Court of Texas has 

concluded that “[t]he record affirmatively demonstrates a jurisdictional defect 

sufficient to void a judgment when it either: (1) establishes that the trial court lacked 

subject matter jurisdiction over the suit; or (2) exposes such personal jurisdictional 

deficiencies as to violate due process.” PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 

273 (Tex. 2012). Accordingly, as the supreme court recently reiterated, “[a] 

complete failure of service deprives a litigant of due process and a trial court of 

personal jurisdiction; the resulting judgment is void and may be challenged at any 

time.” Mitchell v. MAP Res., Inc., No. 21-0124, 2022 WL 1509745, at *9 (Tex. May 

13, 2022) (quoting In re E.R., 385 S.W.3d 552, 566 (Tex. 2012)).

The Supreme Court of Texas has not specifically explained how Peralta

applies in a case such as this, in which no defendant to the bill-of-review proceeding 

was served; Peralta itself addressed a circumstance in which parties to the lawsuit 

underlying a bill of review had not been served. The principles announced in Peralta, 

however, appear to me to compel the conclusion that the deficiencies in personal 

jurisdiction stemming from a complete lack of service on any defendant in this case 

violate due process and accordingly void the trial court’s judgment. See PNS Stores, 

Inc., 379 S.W.3d at 273 (applying Peralta). While the trial court could have 

§ 102.003(a)(6); see In re H.S., 550 S.W.3d 151, 155 (Tex. 2018) (“Because standing to bring a 

SAPCR is governed by statute, we apply statutory-interpretation principles in determining whether 

a plaintiff falls within the category of persons upon whom such standing has been conferred. . . . 

We analyze statutes as a cohesive, contextual whole, accepting that lawmaker-authors chose their 

words carefully, both in what they included and in what they excluded.”) (citations and quotations 

omitted). Further, appellant does not argue that any of the defendants he named brought or could 

have brought the underlying lawsuit as either “a governmental entity” or “a licensed child placing 

agency,” as provided by statute. Tex. Fam. Code Ann. § 102.003(a)(5), (6).
6

dismissed the petition for want of prosecution based on lack of service, I do not 

believe it possessed the power to render judgment on the merits based on lack of 

service. While this conclusion may be counterintuitive, I believe it is mandated by 

Peralta.

5

Because I conclude the trial court’s judgment is void, I would reverse the 

judgment and remand for further proceedings. See Freedom Commc’ns, Inc. v. 

Coronado, 372 S.W.3d 621, 623–24 (Tex. 2012) (per curiam) (“[A]ppellate courts 

do not have jurisdiction to address the merits of appeals from void orders or 

judgments; rather, they have jurisdiction only to determine that the order or 

judgment underlying the appeal is void and make appropriate orders based on that 

determination.”).6

While a bill-of-review proceeding from an underlying final order terminating 

parental rights might be unusual in family district court, at the intermediate appellate 

court an appeal from a merits-based denial of an equitable bill of review in which no 

party to the underlying judgment has been served or appeared should raise concern 

about a void judgment. We are, after all, told that such proceedings should be 

“watched by courts of equity with extreme jealousy.” Alexander, 226 S.W.2d at 998. 

Given Peralta, I encourage the Supreme Court of Texas to grant a petition for review 

if one is filed and settle whether a trial court has subject-matter jurisdiction to reach 

a decision on the merits in a bill-of-review proceeding absent service on, or 

5 Likewise, I do not believe the trial court had the power to sua sponte render judgment on 

limitations, an affirmative defense that must be pleaded and proven. See, e.g., In re M.Y.W., No. 

14-06-00185-CV, 2006 WL 3360482, at *1 (Tex. App.—Houston [14th Dist.] Nov. 21, 2006, pet. 

denied) (mem. op.) (six-month limitations period in Family Code section 161.211(b) is affirmative 

defense).

6 Whether the trial court’s judgment is void is an aspect of our subject-matter jurisdiction 

to review that judgment, and accordingly is an issue we “must consider, . . . even if that 

consideration is sua sponte.” Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 624 (Tex. 

2012).
7

appearance of, any party to the underlying final judgment. I would hope the supreme 

court concludes a trial court has no subject-matter jurisdiction.

Accordingly, I dissent.

/s/ Charles A. Spain

Justice

Panel consists of Chief Justice Christopher and Justices Bourliot and Spain

(Christopher, C.J., majority).