          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-02-00222-CV



          TAC Americas, Inc. f/k/a CSI Control Systems International, Inc., Appellant

                                                    v.

              Edward Boothe; Wanda R. Boothe; Jeremy Boothe; Zachary Boothe;
                               and Emily Boothe, Appellees


        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
            NO. GN200124, HONORABLE PETER M. LOWRY, JUDGE PRESIDING



                This is an appeal from a no-answer default judgment in favor of appellees Edward, Wanda,

Jeremy, Zachary, and Emily Boothe (together the ABoothes@) and against appellant TAC Americas, Inc.,

formerly known as CSI Control Systems International, Inc., in a negligence suit. On appeal, TAC Americas

asserts that: (1) the district-court judgment must be reversed because TAC Americas, through no fault of its

own, is unable to procure a reporter=s record of the district-court proceedings; (2) errors in the issuance,

service, and return of citation are evident on the face of the record and warrant reversal of the default

judgment entered below; and (3) the record does not affirmatively show strict compliance with the Texas

Rules of Civil Procedure relating to the manner and mode of service and return of citation. We will reverse

and remand.


                        FACTUAL AND PROCEDURAL BACKGROUND
                 Edward Boothe was employed as an electrician by the Round Rock Independent School

District. While Boothe was working on an electrical panel at Gattis Elementary School, his pliers came into

contact with the panel=s busbars. A busbar is an electrical conductor that provides a common connection

between several circuits. The resulting electrical fire severely injured Boothe, leaving him with burns on his

hands, face, arms, wrist, and neck.

                 Boothe and his family filed suit alleging negligence against Baird & Hunter Electric, Silverton

Construction Company, and Square D, each a contractor or subcontractor responsible for the construction

of the school or the manufacture or installation of the school=s electrical system. The Boothes later amended

their petition to add TAC Americas as a defendant, alleging that TAC Americas, as the installer of the

electrical system, was negligent in failing to properly inspect and maintain the system, and, as a result of such

negligence, Edward Boothe was seriously injured.

                 The Travis County district clerk issued a citation to ATAC AMERICAS BY DELIVERING

TO ITS REGISTERED AGENT PRENTICE HALL CORPORATION SYSTEM 800 BRAZOS

AUSTIN TEXAS 78701.@ The AOfficer=s Return of Service@ reflects that the amended petition came into

the process server=s possession Aon 11/19/01 Time: 12:23:26.@ The return further states that the process

server completed delivery Aon 11/19/01 Time: 12:15:00@ and that service was executed at A800 Brazos St.

Austin TX 78701@ to ATac Americas, By Delivering To Its Registered Agent Prentice Hall Corporation

System.@ Finally, the return reflects the following: A T PERSONALLY delivering the document(s) to the

person above.@




                                                       2
                 Approximately two months after the district clerk filed the return, the Boothes moved for a

default judgment against TAC Americas. On January 14, 2002, the district court signed an interlocutory

default judgment against TAC Americas, which had neither answered nor appeared. In April 2002, TAC

Americas filed a notice of restricted appeal. See Tex. R. App. P. 30.

                                               DISCUSSION

Restricted Appeal

                 A restricted appeal is available for the limited purpose of providing a party that did not

participate at trial with the opportunity to correct an erroneous judgment. In re E.K.N., 24 S.W.3d 586,

590 (Tex. App.CFort Worth 2000, no pet.) (citing Tex. R. App. P. 30). For a restricted appeal to be

successful: (1) a notice of restricted appeal must be filed within six months after judgment is signed; (2) by a

party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment complained of;

(4) who did not file a timely post-judgment motion or request for findings of fact and conclusions of law; and

(5) error must be apparent on the face of the record. Tex. R. App. P. 30; Stubbs v. Stubbs, 685 S.W.2d

643, 644 (Tex. 1985). The parties join issue over the final elementCwhether error exists on the face of the

record that would require reversal of the default judgment. The face of the record, for purposes of

restricted appeal, consists of all papers on file in the appeal. Norman Communications v. Texas

Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (citing DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551,

551(Tex. 1991)).


Citation & Return of Service




                                                       3
                 By its second and third issues, TAC Americas asserts that errors in the issuance, service,

and return of citation constitute error on the face of the record. Generally, the purpose of citation is to give

the court jurisdiction over the parties and to provide notice to the defendant that it has been sued by a

particular party, asserting a particular claim, in order to satisfy due process and allow the defendant the

opportunity to appear and defend the action. Conseco Fin. Servicing Corp. v. Klein ISD, 78 S.W.3d

666, 675-676 (Tex. App.CHouston [14th Dist.] 2002, no pet.).

                 TAC Americas complains, inter alia, that the process server=s return reflects a factual

impossibility. The return states that the process server received the citation on November 19, 2001, at

ATime: 12:23:26@ and served it on the same day at ATime: 12:15:00.@ The times reflected are indisputably

in conflict, as the citation could not have been served before it was received.

                 Proper citation and return of service are crucial to establishing personal jurisdiction. If the

return of service does not strictly comply, then the service is invalid and in personam jurisdiction cannot be

established. Union Pac. Corp. v. Legg, 49 S.W.3d 72, 79 (Tex. App.CAustin 2001, no pet.). There

are no presumptions in favor of a valid issuance, service, and return of citation in the face of an

attack on a default judgment by restricted appeal. Primate Constr., Inc. v. Silver, 884 S.W.2d.

151, 152 (Tex. 1994); Renaissance Park v. Davila, 27 S.W.3d 252, 255 (Tex. App.CAustin 2000,

no pet.). For a default judgment to withstand direct attack, the record must show strict

compliance with the Texas Rules of Civil Procedure governing citation and return of service. Id.

(citing Stubbs, 685 S.W.2d at 644). And a plaintiff defending a default judgment must show strict

compliance with the procedural rules governing citation and return of service. Silver, 884 S.W.2d


                                                       4
151 at 152. This Court has said that A[v]irtually any deviation will be sufficient to set aside the default

judgment@ in a restricted appeal. Becker v. Russell, 765 S.W.2d 899, 901 (Tex. App.CAustin 1989, no

writ).

                The procedural rules concerning service of process and return of citation must be read in

harmony. AWe cannot construe a rule in a vacuum; we must consider all rules pertinent to the problem, and

harmonize them if possible.@ Templo Ebenezer, Inc. v. Evangelical Assemblies, Inc., 734 S.W.2d 770,

772 (Tex. App.CAmarillo 1987, no writ). Rules 16, 105, and 107 each pertain to service. See Tex. R.

Civ. P. 16, 105, 107. We may not isolate one rule and disregard the others in order to force a meaning the

other rules would not permit. Templo Ebenezer, 734 S.W.2d at 772.

                Rule 16, found in the AGeneral Rules@ section of the Texas Rules of Civil Procedure, states

that A[e]very officer or authorized person shall endorse on all process and precepts coming into his hand the

day and hour on which he received them . . . and the time and place the process was served and shall sign

the returns officially.@ Tex. R. Civ. P. 16 (emphasis added). Rules 105 and 107 are found in section 5 of

the rules, those pertaining specifically to ACitation.@ Rule 105 requires that A[t]he officer or authorized

person to whom process is delivered shall endorse thereon the day and hour on which he received it.@ Tex.

R. Civ. P. 105. Rule 107 provides that Athe return of the officer or authorized person executing the citation

shall be endorsed on or attached to the same; it shall state when the citation was served.@ Tex. R. Civ.

P. 107 (emphasis added). A[T]he term >process= refers to the means by which a court compels compliance

with its demands.@ 62 Am. Jur. 2d Process ' 1 (1990). A[A] citation is a writ of the court addressed to an

officer of the court, and commands him to do certain things.@ Carpenter v. Anderson, 33 Tex. Civ. App.


                                                     5
484, 77 S.W. 291, 293 (1903, writ ref=d). AA citation is usually the original process in any proceeding

where used, and is in that respect analogous to the writ of capias or summons at law, and the subpoena in

chancery.@ 72 C.J.S. Process ' 2 (1987). Probably because it is axiomatic that a Acitation@ is a Aprocess,@

Texas courts do not seem to have considered whether rule 16, on the one hand, and rules 105 and 107, on

the other, require the same actions by the process server.

                The Boothes argue that the hour of service is immaterial and inconsequential.

They contend that a precise statement of time is only necessary to chronicle when the citation

came into the officer=s possession, and not when the service was executed. But Rule 16 explicitly

requires the document to affirmatively state Athe time . . . the process was served.@ Tex. R. Civ.

P. 16 (emphasis added). Although the Boothes, relying on Brown-McKee, Inc. v. J.F. Bryan &

Associates, 522 S.W.2d 958, 959 (Tex. Civ. App.CTexarkana 1975, no writ), contend that

redundant or surplus matter on the face of a return should be disregarded, we disagree that the

time of receipt or service of the citation is either redundant or surplusage. Not only are such

times required by the rules of procedure, but also the re turn in Brown-McKee did in fact reflect

the time of the citation=s delivery. Id. Thus, with the exception of generally condemning

redundancies and surplusage, Brown-McKee does not aid this Court in the resolution of the issue

before us. Read in conjunction with rules 16 and 105, rule 107=s use of Awhen,@ instead of Atime@

or Ahour,@ does not provide a different sufficiency test. Therefore, we cannot say that notation

chronicling the exact time service was executed is Aredundant or surplus matter@ to be

disregarded, as the Boothes contend.


                                                    6
                The return purports to state the time service was executed. However, the return of

service does not strictly comply with the rules of civil procedure because the return indicates that

the process server delivered the documents at ATime: 12:15:00,@ but that the documents first

came into his hand at ATime: 12:23:26.@ The process server could not have executed service

before receiving the citation. The parties do not direct us to, nor have we found, any authority

directly on point. TAC Americas relies on Grammar v. State in which the trial court rendered a

default judgment against the sureties on a bail bond. 89 Tex. Crim. 187, 230 S.W. 165, 165

(1921). The citation=s return stated that the citation was received by the process server on

January 23, 1920, but was executed on February 2, 1912. Id. In reversing the trial-court

judgment, the court of criminal appeals found the law well settled: A[T]he service on the sureties

is so defective in this case that it will not support the final judgment by default taken thereon . . . .

It is not necessary to quote authorities for the purpose of showing that this character of return is

insufficient to support a judgment by default . . . .@ Id.

                The Boothes, although not attempting to distinguish Grammar, counter with Clark

v. Wilcox, 31 Tex. 322 (1868). In Clark, the return was silent as to any event time; the process

server simply noted that the citation was received on April 5, 1860, and executed on Athe 7th of

the same month.@ Id. at 328. The Boothes argue that Clark supports the proposition that A[t]o

the extent the time of service acts must be recorded on the return, the requisites are the day,

month, and year, and no more.@ The Clark court, however, was not directly concerned with a

temporal issue. Stating that it refused to Ayield to strict grammatical rules,@ the supreme court


                                                   7
held that a return=s notation that it was executed by Adelivering in person to Andrew Herron a

certified copy of petition and copy of this writ@ satisfied the statutory requirement that the

process server was to execute the process Aby delivering to the party or parties in person upon

whom he is required to serve it a copy thereof . . . ,@ the argument being that the location of the

phrase Ain person@ in the return indicated that the process server delivered the citation himself,

as opposed to serving Herron. Id. at 328-31.1 The Boothes= argument is based on obiter dictum

found in the court=s general discussion of what was then required by statute to appear in a return:


       [The law], among other things, requires that the return shall state Afully the time
       and manner of service.@ This does not mean senseless or unnecessary details of
       the act of service and of the time when performed; such, for example, as where the
       officer should note the hour of the day, as well as the day of the month and the
       year, and couple with it a statement of the manner in which he approached the
       party served, the conversation that ensued, the attitude which he assumed in the
       final act of delivering the papers, and his exit from the scene of his labors. The
       manner is personal service, and the time the day, month, and year; and it was
       because this manner of service was not stated in the return of the officer, in the
       case of Graves v. Robertson, [22 Tex. 130 (1858),] that it was held insufficient.
       The return in that case was as follows: AExecuted August 10, 1857, by serving
       defendant with a true copy of this writ and a certified copy of plaintiff=s petition.@




       1
           Writing for the court, Justice Hamilton observed:

           There can be no reasonable doubt as to what was intended to be expressed, and the
           objection made is being critical overmuch. If the same strictness of grammatical
           construction contended for here were applied to all the records and judgments in the
           courts of the country, they would be swept as with a tornado, and judicial proceedings
           would fall around us like leaves in autumn.

Clark v. Wilcox, 31 Tex. 322, 331 (1868).


                                                     8
Id. at 329 (emphasis added).2




        2
            The Robertson court held that the recitation Aserving the defendant@ was defective for not
Astating fully the manner of service.@ Graves v. Robertson, 22 Tex. 130, 133 (1858). AWe will require
the return to show that copies of the writ and petition were delivered to the party upon whom the officer is
required to serve them.@ Id.




                                                     9
                Clark generally has been cited only for the proposition that the mere omission of

the hour of service will not be fatal. See, e.g., 3 Roy W. McDonald & Elaine A. Grafton Carlson,

Texas Civil Practice ' 11:66 (2d ed. 2001).3 But the facts of this case do not present this Court

with a problem of omission. Rather, we are presented with a problem of commission. We need

not, and do not, consider whether the citation would support the default judgment had the return

contained no reference to the time of service. However, we cannot ignore temporal references in

the citation=s return that are nonsensical and incapable of reconciliation.

                It is the responsibility of the party requesting service, and not the process server,

to see that process is properly accomplished. Silver, 884 S.W.2d at 153 (citing Tex. R. Civ. P

99(a)). This responsibility extends to seeing that service is properly reflected in the record. Id.

The rules of civil procedure also contain an error-correcting provision. Rule 118 allows for liberal

amendment of the return of service in order to show the true facts of service. Id. (citing Tex. R.

Civ. P. 118). And A[i]f the facts as recited in the [process server=s] return . . . are incorrect and do

not show proper service, the one requesting service must amend the return prior to judgment.@

Id. (emphasis added). This is not a new concept. See Graves v. Robertson, 22 Tex. 130, 133


        3
            Clark is of dubious precedential value. The United States Congress refused to approve the
Texas Constitution of 1866. See Marian Boner, A Reference Guide to Texas Law and Legal History 29
(1976). AFrom 1867 to 1870, the Texas Supreme Court (known as the Military Court) was composed of
justices appointed by the military commander of Texas [General Philip H. Sheridan] during Reconstruction.
The decisions of the Military Court . . . lacked Texas constitutional basis and are generally not given
precedential weight.@ Texas Rules of Form 9 n.3 (9th ed. 1997); Boner, supra, at 29 (ASince [the Military
Court] had no constitutional basis, its decisions are generally considered to have little or no precedential
value.@); see also Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 654 (Tex. 1988) (Robertson, J.,
dissenting) (reliance on authority from reconstruction era should be discouraged).

                                                    10
(1858) (AIt is an easy matter for the parties interested, before asking the courts to render a

judgment by default, to look to the return; and if it be not in proper form, in almost every case, the

officer who made the return can be brought into court to amend it.@). The Boothes, however, did

not seek to amend the return of service. As a result, there remains an obvious defect on the face

of the record. The return presents an irreconcilable inconsistency in the times of receipt and

execution; it must be held invalid. Because it is impossible for the process server to have served

the documents before he received them, we hold that error appears on the face of the record.

                AFor well over a century, [the Texas Supreme Court] has required that strict

compliance with the rules of service of citation affirmatively appear on the record in order for a

default judgment to withstand direct attack.@ Silver, 884 S.W.2d at 152 (citing Wilson v. Dunn,

800 S.W.2d 833, 836 (Tex. 1990); Uvalde County Club v. Martin Linen Supply Co., 690 S.W.2d

884, 886 (Tex. 1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Flynt v. Kingsville,

125 Tex. 510, 82 S.W.2d 934, 934 (1935); Sloan v. Batte, 46 Tex. 215, 216 (1876); Roberts v.

Stockslager, 4 Tex. 307, 309 (1849)). We conclude that the record does not affirmatively show

strict compliance with the Texas Rules of Civil Procedure relating to service and return of

citation. TAC Americas= second and third issues are sustained. 4


                                           CONCLUSION


        4
          Because we have sustained TAC Americas= second and third issues on this basis, we need not
address either TAC Americas= remaining allegations under those issues or its first issue. See Tex. R. App.
P. 47.1 (opinions to be as brief as practicable).


                                                   11
               We reverse the judgment of the district court and remand the case for further

proceedings not inconsistent with this opinion.




                                               Lee Yeakel, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Reversed and Remanded

Filed: December 12, 2002

Publish




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