





NUMBER 13-07-00697-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG 

 

IN THE INTEREST OF C.G., A MINOR CHILD



On appeal from the 105th District Court of Nueces County, Texas.

 

MEMORANDUM OPINION


Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Chief Justice Valdez

 
	Appellant, Humberto Garza, (1) appeals from the denial of his petition for bill of review
in which he asked the trial court to set aside an October 26, 1993 order (the "1993 order")
establishing a parent-child relationship.  In three issues, which we consider out of order,
Garza contends that the trial court erred by: (1) finding that it had personal jurisdiction over
him to render the 1993 order because he had not been properly served; (2) concluding that
his petition was barred by the statute of limitations; and (3) concluding that no fraud,
accident, or wrongful act had been committed by an opposing party or that official mistake
prevented him from asserting any defense.  We affirm.
I. Background
	On July 8, 1993, the Texas Attorney General's Office (the "State") filed a petition to
establish a parent-child relationship between "Jimmy Garza" and C.G., a minor child who
was born in 1984.  The petition requested regular and retroactive child support and the
issuance of service of citation.  Nueces County constables attempted, but were unable, to
personally serve Garza with citation at 1029 Dona Drive, Corpus Christi, Texas which was
his last known address.  Deputy Constable Victor Casares's efforts at personal service are
described in a handwritten note, which states:
Checked address and talked to girlfriend.  She said he does live there[.]
Although, she was very evasive regarding work info[rmation].  He has never
returned my calls and she refused to tell me where he works.  Request [R]ule
106.  He is not on jail list or probation list.

	The State then filed a motion for service under Rule 106 of the Texas Rules of Civil
Procedure, requesting substitute service by delivering citation to anyone over sixteen years
of age at Garza's address.  See Tex. R. Civ. P. 106(b)(1).  Attached to the motion was an
affidavit by Deputy Casares in which he details three failed attempts at service on Garza
and suggests that reasonable notice be given by leaving it with anyone over sixteen years
of age at Garza's address or by attaching it to Garza's door.  The trial court granted the
State's motion and allowed substitute service by leaving a copy of the citation with anyone
over sixteen years of age at Garza's residence.  The return of service, which was executed
by Deputy Casares on September 20, 1993, notes that citation was tacked to the door
because "subject that was at home refused to open door."  The trial court then held a
hearing on the State's petition and entered a final order on October 26, 1993.
	On February 16, 2006, Garza filed an original petition for bill of review seeking to
invalidate the 1993 order.  In his amended petition, (2) Garza argued that he was not properly
served with citation because:  (1) he did not receive actual notice of the State's petition;
(2) even had he received service, it would have been defective because the citation was
directed to "Jimmy Garza," not "Humberto Garza"; (3) Deputy Casares's affidavit in support
of the State's motion was invalid because it was dated August 4, 1985, which is eight years
before the State's petition was filed; and (4) Deputy Casares's affidavit was invalid because
he did not aver that the statements made were true and correct and based upon his
personal knowledge.  Garza also pleaded that "[t]he invalidity of the [1993 order] does not
appear on the face of the record."
	The State answered Garza's petition with a general denial and defended Deputy
Casares's affidavit by arguing that the notary's date was a typographical error that did not
affect its validity.  The State asserted that Garza had not established that the judgment was
the result of fraud, accident, or a wrongful act of an opposite party, and it also asserted the
affirmative defense of laches. 
	On August 21, 2007, a hearing was held on Garza's petition.  On direct examination,
Garza testified that he was never married to M.G., C.G.'s mother, and he had met M.G.
only three or four times.  Garza further testified that, in 1993, he was legally married to
Juanita Garza and the couple had one child together, but they were separated. Garza
recalled first becoming aware of the 1993 order in 2006, when $4,000 was garnished from
Garza's bank accounts.  Garza testified that he had never knowingly made payments on
the 1993 order.  Garza recognized, however, that in 1993, he was in the process of
divorcing Juanita, and after 1993, his paycheck was regularly debited for child support
payments to Juanita.  Garza noted that the child-support payments "just kept going up
every four or five years", and he could have inadvertently made payments under the 1993
order.
	On cross-examination by the State, Garza testified that, while shopping at a Wal-Mart in 2001 or 2002, M.G. approached him and stated, "[y]ou know you've got a daughter"
and that is "when the mess started."  Garza further testified that he did not believe he was
C.G.'s father.  However, Garza admitted that, sometime after 2000, he and C.G. had
"periodic" contact, and he introduced C.G. to his family "[a]s my bastard child."  With
respect to his address in 1993, Garza remembered living at 1029 Dona Drive with Juanita,
but he moved to Up River Road during the divorce and could not remember whether he
lived at 1029 Dona Drive in 1993.  Regarding his name, Garza testified that friends and
family sometimes called him "Jimmy."
	M.G. testified for the State that "[e]verybody knows him [Garza]. . . by Jimmy Garza,"
and "Jimmy" is the English translation of Garza's middle name, "Santiago."  M.G. further
testified that she informed Garza of the 1993 order a year or two after it was entered, and
at that time Garza did not deny being C.G.'s father.
	The trial court took the matter under advisement, and on August 24, 2007, it denied
Garza's petition.  The next day, Garza requested findings of fact and conclusions of law. 
The trial court issued the following relevant factual findings:
1.	Petitioner Humberto Santiago Garza, also known as Jimmy Garza,
was properly served on September 20, 1993, with a Petition to
Establish the Parent-Child Relationship between him and the child,
[C.G.], at 1029 Dona Drive, Nueces County, Corpus Christi, Texas
78407, the address where he resided with his then wife.
 
	. . . .

6.	Petitioner has had a systematic and continuous relationship with the
child, [C.G.], since the year 2000.

7.	In the year 2000, Petitioner knew, or should have known, that an
Order Establishing the Parent-Child Relationship between him and
the child, [C.G.], had been rendered against him.

Additionally, the trial court concluded that the petition for bill of review was barred by a four-year statute of limitations and that the 1993 order did not result from fraud, accident, or
wrongful act of an opposing party or official mistake that prevented Garza from asserting
any defenses.  This appeal ensued.
II. Statute of Limitations

	In his second issue, Garza asserts that the trial court erred in concluding that his
petition was barred by the statute of limitations.  Garza argues that his petition for bill of
review is both a direct and collateral attack on the 1993 order.  See Tex. Dep't of Transp.
v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex. App.-Austin 1997, writ denied)
(providing that a bill of review that fails as a direct attack may constitute a collateral attack). 
Garza concedes that the direct attack portion of his petition is barred by the four-year
residual statute of limitations, see Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon
2008), but he contends that the collateral attack portion of his petition is not subject to
limitations because the 1993 order is void due to his not receiving personal service as
authorized by the trial court's order on substitute service.  The State contends that Garza
cannot collaterally attack the 1993 order on the grounds of defective substitute service.
A.	Standard of Review

 We review the granting or denial of a bill of review under an abuse of discretion
standard.  Manley v. Parsons, 112 S.W.3d 335, 337 (Tex. App.-Corpus Christi 2003, pet.
denied).  A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner without reference to guiding rules or principals.  Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  In determing whether the trial court abused its
discretion, we review the trial court's findings of fact for legal and factual sufficiency and
the trial court's legal conclusions de novo.  BMC Software Belg., N.V. v. Marchand, 83
S.W.3d 789, 794 (Tex. 2002).  
B.	Applicable Law

	For a collateral attack, there is neither a set procedure nor a statute of limitations.
Zarate v. Sun Operating Ltd., Inc., 40 S.W.3d 617, 620-21 (Tex. App.-San Antonio 2001,
pet. denied); Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.-San Antonio 1995, writ
denied).  Collateral attacks may only be used to set aside a judgment that is void or
involves fundamental error.  Zarate, 40 S.W.3d at 621; Glunz, 908 S.W.2d at 255.  A
judgment is void if it is shown that the court lacked jurisdiction (1) over a party or the
property, (2) over the subject matter, (3) to enter a particular judgment, or (4) to act as a
court.  Zarate, 40 S.W.3d at 621; Glunz, 908 S.W.2d at 255 (citing Cook v. Cameron, 733
S.W.2d 137, 140 (Tex. 1987)); see also Browning v. Placke, 698 S.W.2d 362, 363 (Tex.
1985).
	When reviewing a collateral attack, we presume the validity of the judgment under
attack. Johnson v. Ventling, 132 S.W.3d 173, 177 (Tex. App.-Corpus Christi 2004, no
pet.); Toles v. Toles, 113 S.W.3d 899, 914 (Tex. App.-Dallas 2003, no pet.).  The
recitations of the judgment control the rest of the record, and extrinsic evidence cannot be
used to establish a lack of jurisdiction.  Narvaez v. Maldonado, 127 S.W.3d 313, 317 (Tex.
App.-Austin 2004, no pet.); Toles, 113 S.W.3d at 914.  A collateral attack fails if the
judgment contains jurisdictional recitals, even if other parts of the record show a lack of
jurisdiction.  Johnson, 132 S.W.3d at 178; Toles, 113 S.W.3d at 914.
C.	Analysis

	For Garza to prevail on a collateral attack of the 1993 order, he must establish that
it is void or involved fundamental error.  Zarate, 40 S.W.3d at 621; Glunz, 908 S.W.2d at
255.  Garza contends that a lack of proper personal service rendered the 1993 order void
and that he may therefore collaterally attack it at any time.  However, an absence of notice
to a Texas resident will make a judgment voidable, but not void.  Hawkins v. Twin Montana,
Inc., 810 S.W.2d 441, 446 (Tex. App.-Fort Worth 1991, no writ); Davis v. Boone, 786
S.W.2d 85, 87 n.3 (Tex. App.-San Antonio 1991, no writ).  Therefore, a lack of proper
notice is not a recognized ground for a collateral attack.  See McEwen v. Harrison, 345
S.W.2d 706, 711 (Tex. 1961) (holding that a default judgment, which was obtained after
an invalid service of process, could not be overturned by any method other than a valid
direct attack).
	Furthermore, Garza cannot raise a direct attack because M.G. provided testimony
that Garza had acquired actual notice of the 1993 order "a year or two" after it was
rendered and the trial court found that Garza had actual notice of the 1993 order since
2000.  See Dispensa v. Univ. State Bank, 987 S.W.2d 923, 926-28 (Tex. App.-Houston
[14th Dist.] 1999, no pet.) (noting that a default judgment defendant cannot directly attack
a judgment after the four-year limitations period when it did not receive personal service
of process but had acquired actual notice of the judgment).
	Therefore, Garza's first issue is overruled. (3)


III. Conclusion

	The trial court's denial of Garza's bill of review is affirmed.



   	ROGELIO VALDEZ,
							Chief Justice

Memorandum Opinion delivered and 
filed this the 26th day of March, 2009.
1.  The record contains evidence that Humberto Garza was also referred to as "Jimmy Garza."  For
ease of reference we will refer to him as simply Garza.
2.  Garza amended his petition on June 30, 2006.  See Tex. R. Civ. P. 65.
3.  This conclusion relieves us from addressing Garza's first and third issues, because their resolution
would not further affect the outcome of this appeal.  See Tex. R. App. P. 47.1.
