AFFIRMED and Opinion Filed December 2, 2020 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-19-00589-CV 

IN THE INTEREST OF L.M.T., A CHILD 

On Appeal from the 254th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DF-18-19417 

MEMORANDUM OPINION 

Before Justices Schenck, Osborne, and Partida-Kipness 

Opinion by Justice Osborne 

Appellant Terry Powell appeals the trial court’s order denying his bill of 

review to set aside a 1995 judgment establishing his paternity of L.M.T. and ordering 

him to pay child support. In one issue, Powell argues that he was not properly served 

with process in 1994. Concluding that the trial court did not abuse its discretion in 

denying the bill of review, we affirm the trial court’s order. 

BACKGROUND

Appellee the Office of the Attorney General (“OAG”) filed a petition to 

establish the parent-child relationship between Powell and L.M.T. on September 29, 

1994. The petition recited that Powell was entitled to notice and that he resided at 
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2337 Martha, Dallas, Texas 75229. According to evidence offered by Powell at the 

hearing on his bill of review, this address was incorrect; instead, his parents’ address 

where he resided was 2331 Marfa Ave., Dallas, Texas 75216. 

The record does not reveal what attempts, if any, were made to serve Powell 

at the incorrect Martha Avenue address or at his parents’ residence. Instead, the 

constable attempted to serve Powell at a business called “Pagers R Us” at 3420 

Sunnyvale, Dallas 75216. When five attempts to serve Powell at that address failed, 

the OAG filed a motion for substitute service on Powell under rule 106, Texas Rules 

of Civil Procedure. The motion was supported by the constable’s “Rule 106 

Affidavit” describing “several attempts to obtain personal service” on Powell at 

3420 Sunnyvale on October 5, 18, and 20, and November 4 and 8, 1994, and stating 

that he believed that Powell was evading service. The affidavit included the 

constable’s statement that “I believe this party will be given effective notice of this 

suit by delivering a copy of said citation by serving anyone over sixteen years of age 

at the above address, or by securely attaching to the door at the above address which 

is the party’s usual place of business.” 

The trial court granted the motion for substitute service, ordering that the 

constable was authorized to serve Powell by leaving the petition with anyone over 

sixteen years of age or by attaching it to the front door “of the location specified in” 

the officer’s affidavit. The constable completed service by delivering the citation 

and petition to “a black female, who would not identify herself, who was older than 
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sixteen (16) years of age,” at 3420 Sunnyvale, shown on the face of the citation to 

be the address for Pagers R Us, at 2:47 p.m. on January 26, 1995. 

The trial court held a hearing on March 24, 1995, and on March 29, 1995, 

signed its “Default Order Establishing the Parent-Child Relationship” between 

Powell and L.M.T., appointing Powell as possessory conservator and ordering him 

to pay child support. About a week later, Powell went to prison for an unknown 

offense until March 2014. 

On September 24, 2018, twenty-three years after the trial court established the 

parent-child relationship between Powell and L.M.T., Powell filed his petition for 

bill of review alleging that the 1995 judgment was void because he was not 

personally served with citation. The trial court held an evidentiary hearing on 

January 16, 2019, hearing testimony from Powell, from L.M.T.’s mother 

(“Mother”), and from Daryl Carter, the owner of Pagers R Us in the relevant time 

period. Although Powell testified that he never lived at the Martha Avenue address 

and never worked at Pagers R Us, there was conflicting testimony about whether 

Powell could “probably be found”1

 for service of process at Pagers R Us in 1994 and 

early 1995. Carter testified that he knew both Powell and Powell’s father—with 

whom Powell testified he was living—and knew how to contact Powell’s father, 

who was a customer of Carter’s services as a mechanic. When asked to state that 

 1 See TEX. R. CIV. P. 106(b), quoted and discussed below. 
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Powell “never frequented your place of business,” Carter responded, “I don’t—I’m 

not going to say that, but I have seen him around the neighborhood. It’s a big parking 

lot and there are other businesses there, so I have seen him at that location.” Mother, 

who appeared pro se, also asked questions of Carter directed to establishing that 

Pagers R Us “was just a known location of where Mr. Powell hung out.” Powell 

himself acknowledged that he knew Carter “back in the 90s,” before Powell went to 

prison. Powell also testified that as far as he knew, Carter owned Pagers R Us at that 

time. But Powell denied that he “hung out” at Pagers R Us or “frequent[ed] that 

location.” 

The trial court took the matter under advisement and denied the bill of review 

in an order dated February 4, 2019. Powell filed a motion for new trial that the trial 

court denied after a hearing. This appeal followed. 

In one issue, Powell argues “[t]he trial court should not have rendered a 

default judgment against Appellant-respondent because he was never served with 

process and he was never served with the default judgment.” Powell contends that 

because the OAG failed to comply with civil procedure rules 106 and 107 in its 

attempts to serve him with process in 1995, the trial court should have granted his 

petition for bill of review.

BILL OF REVIEW

“A bill of review is an independent equitable proceeding brought by a party 

to a former action who seeks to set aside a judgment that is no longer subject to 
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challenge by appeal.” PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 270 n.1 (Tex. 

2012) (citations omitted). “Because of the importance of according finality to 

judgments, the petitioner’s burden is heavy and the grounds on which relief may be 

obtained by a bill of review are narrow and defined.” Singh v. Trinity Mktg. & 

Distrib. Co., Inc., 397 S.W.3d 257, 262 (Tex. App.—El Paso 2013, no pet.) (citing

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), and Transworld 

Fin. Servs. Corp. v. Briscoe, 722 S.W.2d 407, 407 (Tex. 1987)). 

Bill of review plaintiffs must ordinarily plead and prove (1) a meritorious 

defense to the underlying cause of action, (2) which the plaintiffs were prevented 

from making by the fraud, accident, or wrongful act of the opposing party or official 

mistake, (3) unmixed with any fault or negligence on their own part. In re M.C.B., 

400 S.W.3d 630, 634 (Tex. App.—Dallas 2013, no pet.). But if a bill of review 

plaintiff was not served, constitutional due process relieves him from the need to 

establish the first two requirements. Id. Bill of review plaintiffs alleging they were 

not served with process must still prove “that the judgment was rendered unmixed 

with any fault or negligence of their own,” but this element “is established if the 

plaintiff can prove that he or she was never served with process.” Id. As we explained 

in M.C.B., “[a]n individual who is not served with process cannot be at fault or 

negligent in allowing a default judgment to be rendered.” Id. We concluded, “[p]roof 

of non-service, then, will conclusively establish the third and only element that bill 
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of review plaintiffs are required to prove when they are asserting lack of service of 

process as their only defense.” Id.

When reviewing a trial court’s grant or denial of a bill of review, we indulge 

every presumption in favor of the court’s ruling, which we will not disturb absent an 

affirmative showing that the trial court abused its discretion. Singh, 397 S.W.3d at 

262. A trial court abuses its discretion only if it has acted in an unreasonable or 

arbitrary manner, or without reference to any guiding rules and principles. Okon v. 

Boldon, No. 02-14-00334-CV, 2015 WL 4652775, at *3 (Tex. App.—Fort Worth 

Aug. 6, 2015, no pet.) (mem. op.). An abuse of discretion does not occur when the 

trial court bases its decisions on conflicting evidence. Id. “The trial court is the fact 

finder at a hearing on a bill of review and has the duty of ascertaining the true facts, 

and it is within the court’s province to judge the credibility of the witnesses and to 

determine the weight to be given their testimony.” Id. (internal quotation and citation 

omitted).

DISCUSSION

1. Rule 106 

Civil procedure rule 106(a) provides that unless the citation or an order of the 

court directs otherwise, the citation “shall be served” by delivery to the defendant in 

person or by registered or certified mail. See TEX. R. CIV. P. 106(a)(1), (2). Rule 

106(b), however, permits substituted service if attempts at in-person service have 

not been successful: 
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(b) Upon motion supported by affidavit stating the location of the 

defendant’s usual place of business or usual place of abode or other 

place where the defendant can probably be found and stating 

specifically the facts showing that service has been attempted under 

either (a)(1) [in-person delivery] or (a)(2) [registered or certified mail] 

at the location named in such affidavit but has not been successful, the 

court may authorize service: 

 (1) by leaving a true copy of the citation, with a copy of the

petition attached, with anyone over sixteen years of age at the

location specified in such affidavit, or 

 (2) in any other manner that the affidavit or other evidence before 

the court shows will be reasonably effective to give the defendant 

notice of the suit. 

TEX. R. CIV. P. 106(b). Substituted service of citation made under rule 106 does not 

violate due process if the manner of service is “‘reasonably effective to give the 

defendant notice of the suit’ and the opportunity to appear and defend same.” 

Sgitcovich v. Sgitcovich, 241 S.W.2d 142, 148 (Tex. 1951) (quoting TEX. R. CIV. P. 

106). 

Powell argues that he was not served with process because the address shown 

on the 1995 certificate of last known address, 2337 Martha, does not exist. He 

offered evidence to support this assertion at the bill of review hearing, as well as 

testifying that he was residing in his parents’ home at 2331 Marfa Avenue until he 

went to prison in April 1995. Quoting Rhodes v. Kelly, No. 05-16-00888-CV, 2017 

WL 2774452, at *5 (Tex. App.—Dallas June 27, 2017, pet. denied) (mem. op.), 

Powell argues that “[s]ervice of citation must be in strict compliance with the rules 

of civil procedure to establish jurisdiction over a defendant and support a default 
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judgment.” As we explained in Rhodes, “[i]f strict compliance is not shown, the 

service of process is invalid and of no effect.” Id. (internal quotation omitted). 

Rule 106(b), however, permits service not only at “the location of the 

defendant’s usual place of business or usual place of abode,” but also at an “other 

place where the defendant can probably be found.” TEX. R. CIV. P. 106(b). The 

deputy constable’s rule 106 affidavit provided evidence that he “believe[d] 

def[endant] is avoiding service,” and that he “believe[d] this party will be given 

effective notice of this suit” through substituted service at 3420 Sunnyvale. 

The deputy constable’s return showed service at 3420 Sunnyvale on “a black 

female, who would not identify herself, who was older than sixteen (16) years of 

age.” The supreme court has explained: 

The return of service is not a trivial, formulaic document. It has long 

been considered prima facie evidence of the facts recited therein. The 

recitations in the return of service carry so much weight that they cannot 

be rebutted by the uncorroborated proof of the moving party. 

Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) 

(citations omitted). Further, the supreme court has explained that where a court has 

authorized substituted service, requiring proof of actual notice would “frustrate Rule 

106(b)’s purpose” of providing alternate methods of service when service under rule 

106(a) has failed. State Farm Fire & Cas. Co. v. Costley, 868 S.W.2d 298, 299 (Tex. 

1993) (per curiam). 

Here, the deputy constable’s affidavit and return of service strictly complied 

with rule 106. Although Powell claims that he did not receive actual notice of the 
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citation and petition, and the affidavit does not purport to establish that he did, it is 

nonetheless sufficient proof that substituted service was completed on Powell in 

accordance with the trial court’s order. See Williams v. Asset Acceptance LLC, No. 

03-11-00520-CV, 2012 WL 2989219, at *4 (Tex. App.—Austin July 20, 2012, no 

pet.) (mem. op.) (affidavit was sufficient proof of substituted service under rule 106 

where it showed compliance with trial court’s rule 106 order). 

The question presented by Powell’s bill of review was one of fact, whether he 

could “probably be found” at the place where service was attempted and eventually 

made. See TEX. R. CIV. P. 106(b). The trial court heard conflicting testimony on this 

question and was the sole judge of the witnesses’ credibility. See Okon, 2015 WL 

4652775, at *3; see also Brooks v. Office of Attorney Gen., No. 03-06-00678-CV, 

2008 WL 2388025, at *3 (Tex. App.—Austin June 11, 2008, no pet.) (mem. op.) 

(district court, as fact-finder in bill of review proceeding, was free to resolve 

conflicts in evidence regarding whether defendant received notice of trial). We may 

not substitute our judgment for the trial court’s where, as here, there is evidence to 

support its findings. See Okon, 2015 WL 4652775, at *3. 

We conclude the trial court did not abuse its discretion in determining that the 

OAG’s service of its 1994 petition to establish the parent-child relationship between 

Powell and L.M.T. met the requirements of rule 106. See Singh, 397 S.W.3d at 262. 

We overrule the portion of Powell’s issue complaining that the OAG failed to 

comply with rule 106. 
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2. Rule 107 

Citing the current text of civil procedure rule 107, Powell argues that the 

officer’s return did not include the name of the person served. See TEX. R. CIV. P. 

107(b)(5) (“The return, together with any document to which it is attached, must 

include the following information: . . . (5) the person or entity served”).2

 He argues, 

“[t]he unknown black female could have been under sixteen years of age. The 

constable could have served another person who would identify themselves but 

chose not to do so.” 

The OAG responds that Powell’s “speculative assertions” are not supported 

by the record and do not rebut the recitations in the officer’s return, which constitute 

prima facie evidence of the facts recited. See Primate Constr., Inc, 884 S.W.2d at 

152 (“The recitations in the return of service carry so much weight that they cannot 

be rebutted by the uncorroborated proof of the moving party.”).

The OAG further argues that the return fully complied with rule 107. Rule 

107(f) expressly provides that when, as here, “citation is executed by an alternative 

method as authorized by Rule 106,” then “proof of service shall be made in the 

manner ordered by the court.” TEX. R. CIV. P. 107(f). The trial court’s rule 106 order 

 2

 The OAG points out that rule 107 did not include this requirement in 1995 when the deputy constable 

served Powell. See Misc. Docket No. 11-9250 (Tex. Dec. 12, 2011) (amending rule 107). Then, rule 107 

required the officer’s return to state “when the citation was served and the manner of service and be signed 

by the officer,” see id., as the return here did. The 2011 amendments to rule 107 adding subsection (b)(5) 

are available at 

https://www.txcourts.gov/All_Archived_Documents/SupremeCourt/AdministrativeOrders/miscdocket/11/

11925000.pdf). 
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specified that “the Deputy Constable of DALLAS County be authorized to serve a 

Citation upon TERRY POWELL by leaving a true copy of the Petition attached, 

with anyone over sixteen years of age at, or by attaching same to the front door of 

the location specified in such Affidavit.” As quoted above, the deputy constable’s 

return complied with the trial court’s order. We conclude that the return complied 

with rule 107’s requirements, and decide this portion of Powell’s issue against him. 

Concluding that the trial court did not abuse its discretion by denying Powell’s 

petition for bill of review, we decide Powell’s sole issue against him.

CONCLUSION

We affirm the trial court’s February 4, 2019 “Order Denying Bill of Review.” 

190589F.P05 

 

/Leslie Osborne/ 

LESLIE OSBORNE 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

IN THE INTEREST OF L.M.T., A 

CHILD 

No. 05-19-00589-CV 

 On Appeal from the 254th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DF-18-19417. 

Opinion delivered by Justice 

Osborne. Justices Schenck and 

Partida-Kipness participating. 

 In accordance with this Court’s opinion of this date, the trial court’s February 

4, 2019 “Order Denying Bill of Review” is AFFIRMED. 

Judgment entered December 2, 2020