                                Fourth Court of Appeals
                                       San Antonio, Texas
                                  MEMORANDUM OPINION
                                          No. 04-13-00027-CV

                               IN THE INTEREST OF J.G.H., a Child

                      From the 131st Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-15767
                           Honorable Solomon Casseb, III, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: May 14, 2014

REVERSED AND REMANDED

           Joseph Guerra filed a petition for bill of review seeking to set aside and vacate a decree in

a suit affecting the parent-child relationship (“SAPCR”) that he alleged was entered in violation

of his due process rights. After a hearing, the trial court denied relief. Because we agree that the

trial court was without jurisdiction to render the SAPCR decree absent proof of service to Guerra

or proper waiver of service, we reverse the trial court’s order denying the petition for bill of review

and vacate the SAPCR decree.

                                             BACKGROUND

           Guerra and Priscilla Rodriguez are the biological parents of J.G.H., who was born on April

14, 2011. It is undisputed that J.G.H. left the hospital after her birth in the care of Rodriguez’s

aunt, Ydette Holguin. What is disputed are the terms under which J.G.H. was placed in Holguin’s
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care. According to Guerra and Rodriguez, Holguin agreed to take care of J.G.H. until they were

able to financially provide for her. According to Holguin, Guerra and Rodriguez wanted to

relinquish their rights to J.G.H. and allow Holguin to adopt her. A few weeks after J.G.H.’s birth,

on May 3, 2011, both Rodriguez and Guerra signed a document titled “Waiver of Citation and

Consent to Appointment of Sole Managing Conservators” in which they consented to appoint

Holguin as sole managing conservator of J.G.H. The document further provided: “I have been

given a copy of the Original Petition in Suit Affecting the Parent-Child Relationship filed in this

cause. . . . I hereby enter my appearance in this cause for all purposes and waive the issuance,

service, and return of citation on me. I agree that the petition may be amended and that the cause

may be taken up and considered by the Court without further notice to me.”

       Although the waiver stated that Guerra and Rodriguez were given a copy of the filed

petition, the petition was not actually filed until November 15, 2011, six months after the waiver

was signed. A “Decree in Suit Affecting the Parent-Child Relationship” was rendered by the trial

court the same day. The decree recites that Rodriguez and Guerra waived issuance of citation by

waiver duly filed and did not otherwise appear and agreed to the entry of the decree by their

signature. The decree appoints Holguin as the sole managing conservator of J.G.H. and appoints

Rodriguez and Guerra joint possessory conservators, with visitation to be scheduled as agreed

upon by the parties and supervised by Holguin. The waivers previously signed by Guerra and

Rodriguez were also filed on November 15, 2011.

       According to the attorney who prepared the above documents, Holguin contacted him

about adopting J.G.H. Because Holguin could not afford the cost associated with an adoption,

however, the attorney suggested the parties pursue a conservatorship. The attorney met with

Holguin, Rodriguez, and Guerra in his office and had Rodriguez and Guerra sign waivers. He told

them that once J.G.H. had resided with Holguin for six months, he would file the SAPCR petition;
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all parties also signed the SAPCR decree in his office. The attorney testified that he did not file

the documents until November 15, 2011. He admitted that the waivers and the decree were signed

before the SAPCR petition was filed.

       Ten months after the SAPCR decree appointing Holguin sole managing conservator was

entered, Guerra filed a petition for bill of review alleging that he was never served with a filed

copy of Holguin’s original SAPCR petition and that his signature on the SAPCR decree was

forged. After an evidentiary hearing, the trial court denied Guerra’s bill of review. Guerra filed a

motion for new trial, which was also denied by the trial court. Guerra timely appealed.

                          APPLICABLE LAW AND STANDARD OF REVIEW

       A bill of review is an equitable proceeding to set aside a judgment that is no longer

appealable or subject to challenge by a motion for new trial. Caldwell v. Barnes (II), 154 S.W.3d

93, 96 (Tex. 2004) (per curiam); see also TEX. R. CIV. P. 329b(f) (on expiration of time within

which trial court has plenary power, “a judgment cannot be set aside by the trial court except by

bill of review for sufficient cause”). A bill-of-review plaintiff 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 [its] own part.” Caldwell (II), 154 S.W.3d at 96. When,

as here, “a bill-of-review plaintiff claims a due process violation for no service or notice, it is

relieved of proving the first two elements set out above.” Mabon Ltd. v. Afri–Carib Enters., Inc.,

369 S.W.3d 809, 812 (Tex. 2012). The third element, lack of negligence, is conclusively

established if the bill-of-review plaintiff can prove he was never served with process. Id. A bill

of review plaintiff need not satisfy the formal requirements for a bill of review, however, when the

record reveals that the trial court lacked jurisdiction to render the judgment at issue. See Joyner v.

Joyner, 352 S.W.3d 746, 748 (Tex. App.—San Antonio 2011, no pet.) (“If a direct attack seeks to
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set aside a judgment because the trial court lacked subject matter jurisdiction, the petitioner need

not satisfy the formal bill of review requirements for the court to consider the jurisdictional

challenge.”). Whether a trial court has personal jurisdiction over a defendant is a question of law

that we review de novo. Id. at 749; Am. Type Culture Collection, Inc. v. Coleman, 83 S.W.3d 801,

805-06 (Tex. 2002).

                                                DISCUSSION

           Guerra contends that the trial court erred in denying the bill of review because: (1) the

waiver of citation was obtained prior to the filing of the SAPCR petition in contravention of Rule

119, and therefore the trial court lacked jurisdiction over him, and (2) his signature on the SAPCR

decree was forged. 1

           Rule 119 of Texas Rules of Civil Procedure provides, in relevant part, that:

           The defendant may accept service of process, or waive the issuance or service
           thereof by a written memorandum signed by him, or by his duly authorized agent
           or attorney, after suit is brought, sworn to before a proper officer other than an
           attorney in the case, and filed among the papers of the cause, and such waiver or
           acceptance shall have the same force and effect as if the citation had been issued
           and served as provided by law.

TEX. R. CIV. P. 119. Therefore, the Rule contemplates that waiver may not be effected until after

suit has been filed. A waiver of issuance and service of citation executed prior to the filing of an

action is void. Deen v. Kirk, 508 S.W.2d 70, 71 (Tex. 1974) (orig. proceeding); Faglie v. Williams,

569 S.W.2d 557, 563 (Tex. Civ. App.—Austin 1978, writ ref’d n.r.e.) (holding waiver signed two

days before filing of suit was void); Gonzalez v. Gonzalez, 494 S.W.2d 655, 656 (Tex. Civ. App.—

El Paso 1973, no writ) (noting that “the waiver must be executed after institution of the action”

and holding that waiver of citation was void where original petition and waiver were filed at same

time); but see Tidwell v. Tidwell, 604 S.W.2d 540, 542 (Tex. Civ. App.—Texarkana 1980, no writ)


1
    Holguin did not file an appellee’s brief.

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(holding that where waiver and petition were signed on same day and simultaneously filed,

presumption must be indulged that trial court found that waiver was executed after suit was filed

because it was possible that waiver was filed 59 seconds after petition).

       Here, the record reflects that the waiver of citation was signed by Guerra on May 3, 2011.

At that time, the suit for conservatorship had not been filed by Holguin. The attorney testified that

he did not file the SAPCR petition on Holguin’s behalf until November 15, 2011, and at that time

he also filed Guerra’s waiver of citation and presented the SAPCR decree to the trial court for

signing. Accordingly, because the petition was filed after Guerra executed the waiver, the wavier

was void, and the SAPCR decree was rendered in violation of Rule 119. Similarly, Guerra’s

signature on the decree did not constitute an appearance such that service was not required because

the petition was not on file prior to the signing of the decree. See Exito Elecs. Co. v. Trejo, 142

S.W.3d 302, 304 (Tex. 2004) (per curiam) (“a party enters a general appearance when it (1) invokes

the judgment of the court on any question other than the court’s jurisdiction, (2) recognizes by its

acts that an action is properly pending, or (3) seeks affirmative action from the court”). Because

there was no action pending at the time the agreed decree was signed, it cannot constitute a general

appearance. See id. Under these circumstances, the trial court lacked jurisdiction to render the

SAPCR decree. See TEX. R. CIV. P. 124; Strawder v. Thomas, 846 S.W.2d 51, 62 (Tex. App.—

Corpus Christi 1992, no writ) (“Rules relating to service of process are mandatory, and a failure

to comply therewith, if a judgment be rendered against a party who was not served in accordance

with those rules (and who did not waive service of citation or appear voluntarily) renders the

judgment void.”). We sustain Guerra’s first issue. Because our resolution of this issue is

dispositive, we need not address Guerra’s forgery claim. See TEX. R. APP. P. 47.1.




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                                         CONCLUSION

       We hold that the trial court erred in denying the bill of review. We therefore reverse the

trial court’s order denying the bill of review and vacate the SAPCR decree signed on November

15, 2011 in cause number 2011-CI-18261. We additionally remand the case to the trial court for

further proceedings.


                                                Rebeca C. Martinez, Justice




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