                  COURT OF APPEALS
                   SECOND DISTRICT OF TEXAS
                        FORT WORTH

                      NO. 02-13-00171-CV


ROSS MANDEL AND LEA MANDEL                       APPELLANTS

                                V.

LEWISVILLE INDEPENDENT                            APPELLEES
SCHOOL DISTRICT; COUNTY OF
DENTON, TEXAS; AND CITY OF
PLANO

                             ----------

      FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                TRIAL COURT NO. 2011-0490-431
                           ----------

                              AND

                      NO. 02-13-00412-CV

IN RE ROSS MANDEL AND LEA                         RELATORS
MANDEL
                             ----------

                     ORIGINAL PROCEEDING
                 TRIAL COURT NO. 2011-0490-431

                             ----------
                                    OPINION

                                      ----------

                                 I. Introduction

      Appellee Lewisville Independent School District (Lewisville ISD) sued

Appellants Ross Mandel and Lea Mandel and lienholder Koslow Technologies

Corporation Charitable Remainder Trust (Koslow) to collect delinquent ad

valorem taxes owed by the Mandels on their residence located at 6648 Castle

Pines Drive, Plano, Texas. Appellees the City of Plano (the City) and the County

of Denton, Texas, (the County) intervened to assert their claims for delinquent

taxes owed to those taxing entities by the Mandels on their property. The trial

court conducted a final hearing, at which the Mandels did not appear, and

rendered a default judgment in favor of Lewisville ISD, the City, and the County

against Ross Mandel and Lea Mandel and a judgment against Koslow in rem.

The Denton County District Clerk issued an order of sale, the tax liens were

foreclosed, and the property was sold at a sheriff’s sale to Claussner Holdings,

LLC (Claussner). The Mandels filed this restricted appeal complaining of the

validity of the default judgment against them and the tax sale of their residence.

      After submission of this appeal with oral argument, the trial court clerk

issued a writ of possession, at Claussner’s request, as provided by the default

judgment. Even though the trial court clerk issued a writ of supersedeas to stay

any execution of the writ of possession, Denton County Constable Ron Smith

began executing the writ of possession. On the Mandels’ motion, we granted an
                                          2
emergency stay of execution of the writ of possession during its execution.

Constable Smith nevertheless executed the writ of possession and evicted the

Mandels from the property. The Mandels filed a petition for writ of mandamus

asking this court to direct either Claussner or Constable Smith to return

possession of the property to the Mandels or to direct the trial court to do the

same. We consolidated the petition for writ of mandamus and the restricted

appeal for decision because the petition for writ of mandamus is dependent upon

our determination of the merits of the restricted appeal.

      We affirm the trial court’s judgment against the Mandels, lift our emergency

stay, and dismiss the Mandel’s petition for writ of mandamus as moot.

                            II. Chronology of Events

A. Events relevant to default judgment and sale

       On July 29, 2011, Lewisville ISD filed its original petition against the

Mandels and the lienholder, Koslow, for payment of delinquent 2010 property

taxes on the Mandels’ home. Lea Mandel was served by personal service of

process on August 5, 2011. Ross Mandel was served by personal service of

process on August 16, 2011. The Mandels did not answer. Citation for service

on Koslow by certified mail was returned unserved. While the case was pending,

at some point in the following months, Koslow paid the delinquent 2010 taxes.

      Lewisville ISD filed its first amended original petition on June 7, 2012,

eliminating its cause of action for 2010 taxes and alleging that the Mandels were

delinquent on their 2011 taxes. Lewisville ISD’s certificate of service appended

                                         3
to its amended petition stated that it served the Mandels with a copy of the

amended petition pursuant to Texas Rule of Civil Procedure 21a. The Mandels

did not answer. Koslow was personally served and answered on June 16, 2012.

On November 2, 2012, the City intervened. On November 13, 2012, the County

intervened. The City and the County each sought to recover delinquent 2011

property taxes owed by the Mandels.

      On November 15, 2012, the case was called to trial. The Mandels did not

appear.    Koslow appeared through its attorney.        The trial court overruled

Koslow’s objections to the lack of personal service of the amended petition on

the Mandels and to the lack of personal service on either the Mandels or Koslow

by the intervenors.   On the same date, the trial court signed a final default

judgment against the Mandels and final judgment against Koslow in rem for the

amounts owed to Lewisville ISD, the City, and the County for the delinquent 2011

taxes, including penalties and interest until paid. The judgment also ordered

foreclosure of the tax liens on the property, issuance of an order of public sale of

the property, payment to the taxing entities of the amounts owed from the

proceeds, and issuance of a writ of possession to the purchaser of the property

at the sale.

      On November 16, 2012, the Denton County District Clerk mailed a notice

of the judgment to each of the Mandels, as well as a billing statement for the

court costs. On January 4, 2013, the Denton County District Clerk issued an

order of sale for foreclosure of the tax liens and for court costs recovered in the

                                         4
default judgment. The Denton County Sheriff published notice of the sale and on

March 13, 2013, mailed a copy of the notice to the Mandels. The property was

sold at a sheriff’s sale on the Denton County Courthouse steps to Claussner on

April 2, 2013. The Mandels perfected this restricted appeal on May 14, 2013.

B. Events relevant to petition for writ of mandamus

      On October 21, 2013, at Claussner’s request, the trial court clerk issued a

writ of possession as ordered by the judgment. The Mandels then filed a net

worth affidavit, a cash deposit in lieu of supersedeas bond, and a motion to

quash or vacate the writ of possession. On October 31, 2013, the trial court clerk

issued a writ of supersedeas requiring the constable to desist from efforts to

obtain possession of the property for Claussner. But on November 12, 2013,

Constable Smith went to the Mandels’ residence to execute the writ of

possession. The Mandels immediately filed an emergency motion to enforce the

writ of supersedeas in the trial court, and Constable Smith agreed to leave the

Mandels’ property without executing the writ of possession pending the hearing

on the Mandels’ motion. During a telephonic hearing on November 12, 2013, the

trial court informed the Mandels and Claussner that it would not consider the

Mandels’ motion to enforce the writ of supersedeas or their motion to quash or

vacate the writ of possession until November 15, 2013. At Claussner’s urging,

Constable Smith returned to the property the morning of November 13, 2013,

proceeded to begin executing the writ of possession, removed the Mandels and

their possessions from the property, and delivered the property to Claussner,

                                        5
refusing to recognize the writ of supersedeas. The Mandels immediately filed an

emergency motion in this court to stay execution of the writ of possession. We

granted the motion that same day—November 13, 2013—and stayed any

execution of the writ of possession until further order of this court. On November

15, 2013, the trial court denied the Mandels’ motion to enforce the writ of

supersedeas and their motion to quash or vacate the writ of possession.

      The Mandels then filed a petition for writ of mandamus in this court to

compel the trial court to vacate its order denying their motion to quash or vacate

the writ of possession and its order denying their motion to enforce the writ of

supersedeas. The Mandels requested this court to direct either Claussner or

Constable Smith to return possession of the property to the Mandels or to direct

the trial court to do the same.1

                 III. Standard of Review on Restricted Appeal

      A restricted appeal is available for the limited purpose of providing a party

who did not participate at trial with the opportunity to correct an erroneous


      1
       We abated the appeal and petition for writ of mandamus and issued an
order to Constable Smith to show cause at a hearing in the trial court as to why
he should not be held in contempt of this court for failing to comply with our stay
order by proceeding to execute the writ of possession on behalf of Claussner,
physically removing the Mandels and their personal property from the property,
changing the locks on the doors to the residence, and turning the property over
to Claussner. After a hearing in the trial court at which Constable Smith
appeared and presented evidence, this court declined to hold him in contempt
and reinstated the appeal and petition for writ of mandamus. See this court’s
order declining to hold Constable Smith in contempt dated July 1, 2014, attached
as an Appendix to this opinion.

                                        6
judgment. In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.—Fort Worth 2000, no

pet.). To prevail in a restricted appeal, an appellant must show that (1) the notice

of appeal was filed within six months of the date the complained-of judgment or

order was signed; (2) the appellant was a party to the suit who did not participate

in the hearing that resulted in the judgment or order; (3) the appellant did not

timely file a post-judgment motion, request findings of fact and conclusions of

law, or file a notice of appeal within the time permitted under rule 26.1(a); and (4)

the complained-of error is apparent from the face of the record. Tex. R. App. P.

26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

For the purpose of a restricted appeal, the face of the record consists of all

papers on file in the appeal, including the reporter’s record of the final hearing,

along with all papers on file with the trial court clerk at the time the judgment was

entered. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.

1997). The first three requirements are not in dispute in this case. Only the

fourth element is at issue here—whether error is apparent on the face of the

record.

      There is no presumption in favor of proper issuance, service, and return of

citation. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). If the

record fails to affirmatively show strict compliance with the rules of civil procedure

governing issuance, service, and return of citation, error is apparent on the face

of the record, and attempted service of process is invalid and of no effect. Lytle

v. Cunningham, 261 S.W.3d 837, 840 (Tex. App.—Dallas 2008, no pet.). When

                                          7
the attempted service of process is invalid, the trial court acquires no personal

jurisdiction over the defendant, and the default judgment is void. Id.

                                    IV. Analysis

A.    The return of citation personally served on Ross Mandel was in strict
      compliance with the applicable rules of civil procedure.

      By their second issue, the Mandels contend that the citation by which Ross

Mandel was served with Lewisville ISD’s original petition is not in strict

compliance with the applicable rules because the return does not state when

citation was personally served on him.2 The Mandels do not dispute and the

record affirmatively reflects that the officer noted on his return of citation that he

received the citation on August 3, 2011, at 1:27 p.m. and that he executed the

citation by personally delivering it to Ross Mandel on August 16, 2011, at 6648

Castle Pines Drive, Plano, County of Denton, Texas. The Mandels also do not

dispute that Lea Mandel, Ross Mandel’s wife, was personally served with

citation, nor do they complain that the citation return for her is not in strict

compliance with the applicable rules. But Ross Mandel contends that, as to him,

listing the date of service, location, and manner of service on the return was not a

sufficient return of the citation because the officer serving the citation did not also

state on the return the hour that Ross Mandel was served as required by rule 16

of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 16. In response,


      2
      We will address the Mandels’ first issue complaining of denial of due
process below.

                                          8
Lewisville ISD, as well the City and the County, contend that the return strictly

complies with the applicable rules, pointing out that a suit to recover delinquent

ad valorem taxes is governed by other rules of civil procedure that specifically

apply to citations in tax suits.

      A winding road through the rules of civil procedure leads us to those that

govern suits for delinquent ad valorem taxes.        We begin with Rule 2, the last

sentence of which states “that Rule 117a shall control with respect to citations in

tax suits.” Tex. R. Civ. P. 2. In turn, rule 117a in relevant part states, “In all suits

for collection of delinquent ad valorem taxes, the rules of civil procedure

governing issuance and service of citation shall control the issuance and service

of citation therein, except as herein otherwise specifically provided.” Tex. R. Civ.

P. 117a.    Subsection 1 of rule 117a, entitled “Personal Service: Owner and

Residence Known, Within State,” provides:

            Where any defendant in a tax suit is a resident of the State of
      Texas . . . the process shall conform substantially to the form
      hereinafter set out for personal service and shall contain the
      essential elements and be served and returned and otherwise
      regulated by the provisions of Rules 99 to 107, inclusive.”

Tex. R. Civ. P. 117a(1) (emphasis added); see Conseco Fin. Servicing v. Klein

Indep. Sch. Dist., 78 S.W.3d 666, 673–74 (Tex. App.—Houston [14th Dist.] 2002,

no pet.) (noting that Rule 2 requires application of rule 117a to delinquent ad

valorem tax suits). Because Ross Mandel complains of the sufficiency of service

of the citation on him, we look to rule 107, entitled “Return of Service,” to



                                           9
determine sufficiency of the return of citation in a suit for delinquent taxes.   See

Tex. R. Civ. P. 107, 733–34 S.W.2d XLV (1987, amended 1990),117a(1).

      The version of rule 107 that was in effect on the date Ross Mandel was

served required that the officer or authorized person executing the citation

(1) endorse the return, (2) “state when the citation was served and the manner of

service,” and (3) sign the return officially. Tex. R. Civ. P. 107, 733–34 S.W.2d

XLV (1987, amended 1990).3          A return of service should be given a fair,

reasonable, and natural construction as to its plain intent and meaning. Dole v.

LSREF2 APEX 2, LLC, 425 S.W.3d 617, 621–22 (Tex. App.—Dallas 2014, no

pet.) (holding typographical error in date of service did not render return fatally

defective when actual date was discernable from record); Conseco Fin.

Servicing, 78 S.W.3d at 673 (holding unreadable handwritten date in

endorsement of return plainly discernable when return was viewed as a whole);

Nelson v. Remmert, 726 S.W.2d 171, 172 (Tex. App.—Houston [14th Dist.] 1987,

writ ref’d n.r.e.) (holding return complied with rule 107 although date of delivery or

receipt by certified mail was omitted but officer endorsed that he delivered

citation by certified mail on December 10, 1985, and postmark on certified mail

return receipt was dated December 14, 1985).

      3
       In addition, Rule 107 provided, and still does, that no default judgment
could be granted unless the citation had been on file with the clerk of the court for
ten days, exclusive of the day of filing and the day of judgment. Compare Tex.
R. Civ. P. 107, with Tex. R. Civ. P. 107, 733–34 S.W.2d XLV (1987, amended
1990). The Mandels do not dispute that the returns had been on file more than
ten days in this case.

                                         10
        Ross Mandel’s specific complaint is not that the return omits the date upon

which he was served but that it omits the hour of service. The supreme court

stated a century and a half ago in Clark v. Wilcox, when addressing a similar

return and statutory language prior to adoption of the civil rules, that a return that

stated the date and manner of service, signed by the serving officer, was a

sufficient return of citation to comply with the previous statute then in effect,

requiring that the return state “fully the time and manner of service.” 31 Tex. 322,

328–29 (1868). The supreme court was of the opinion that “time” did not “mean

senseless or unnecessary details of the acts of service and of the time when

performed; such for example, as where the officer should note the hour of the

day.”       Id. at 328.   Rather, the interpretation of the statute articulated by the

opinion in Clark was that “[t]he manner is personal service, and the time [is] the

day, month and year.”         Id. (emphasis added).    Thus, the “time” requirement,

according to the supreme court, was fully satisfied by stating the date on which

the citation was executed. See id. at 328–29.

        The ruling in Clark has remained undisturbed for a century and a half. 4

The Mandels have provided us with no authority otherwise—that strict


        4
        During this period of Reconstruction, the supreme court was composed of
justices, including the author of the Clark opinion, the Honorable Andrew J.
Hamilton, appointed by the military commander in charge of Texas at the time
and referred to collectively as the “Military Court.” See Hans W. Baade,
Chapters in the History of the Supreme Court of Texas: Reconstruction and
“Redemption” (1866–1882), 40 St. Mary’s L.J. 17, 50–72 (2008). Justice
Hamilton, Alabama-born, had a distinguished career, having previously practiced
law in Austin for years, served in both the legislature and Congress and as
                                            11
compliance with rule 107 requires stating the hour of service in addition to the

date—nor have we found any case so holding even though rule 107 has carried

forward substantially the same language as the predecessor statute.             The

supreme court amended rule 107, as well as a number of other rules regarding

service of process and other writs, effective January 1, 2012. 5 Under amended

rule 107, a return of service must state “the date and time the process was

received” by the officer for service but need only state “the date of service.” Tex.

R. Civ. P. 107 (emphasis added). The difference between requiring that the

return state the “date and time” the process was received by the officer and

requiring only the “date” of service on the party (but not the hour) further supports

Lewisville ISD’s and the other taxing entities’ argument that the return need only

state the date of service.




Texas’s first provisional governor. See id. at 54; see generally 5 Louis J.
Wortham, A History of Texas from Wilderness to Commonwealth 5–75 (1924).
While that court’s opinions are not considered “precedential,” they may still be
considered persuasive. Jim Paulsen and James Hambleton, Confederates and
Carpetbaggers: The Precedential Value of Decisions from the Civil War and
Reconstruction Era, 51 Tex. B.J. 916, 918–19 (Oct. 1988); cf. TAC Americas,
Inc. v. Boothe, 94 S.W.3d 315, 321 (Tex. App.—Austin 2002, no pet.) (noting in
dicta that Clark is of dubious “precedential” value and generally cited only for the
proposition that the mere omission of the hour of service will not be fatal (citing 3
Roy W. McDonald and Elaine A. Grafton Carlson, Texas Civil Practice § 11:66
(2d ed. 2001))).
      5
        See Supreme Court of Tex., Final Approval of Amendments to Tex. Rules
of Civil Procedure 99, 107, 108, 117, 239, 534, 536a, 668, 689, 737.4, 742, and
742a, Misc. Docket No. 11-9250 (Dec. 12, 2011).

                                         12
      The court’s reasoning in Clark and the wording of rule 107 both before and

after its revision demonstrate that stating the date of service in the return was

sufficient to constitute strict compliance with the applicable rule 107.6         The

supreme court could easily have drafted the rule to require that the officer state

the hour as well as the date of service in the return, but it did not do so. The

date, but not the hour, of service is crucial to determine future procedural

deadlines such as the date on which an answer is to be filed or to otherwise

make an appearance or risk default. See Tex. R. Civ. P. 99(b), 239. Under the

version of rule 107 in effect at the time of service, the officer who served Ross

Mandel fulfilled the rule’s requirements by stating on the pre-printed return form

that citation was executed by delivery to Ross Mandel, in person, of a true copy

of the citation, together with the accompanying copy of the petition, on August

16, 2011, at 6648 Castle Pines Drive, Plano, County of Denton, Texas.7

      The Mandels urge that the supreme court’s interpretation of rule 16 in

Insurance Co. of State of Pennsylvania v. Lejeune, 297 S.W.3d 254, 255–56

      6
       We decline to accept the Mandels’ contention that the existence of blanks
for the hour of service in virtually every printed form for return of service
somehow supports their argument that the officer serving a citation must fill in the
blank with the hour. In this restricted appeal, there is no evidence that every
such form contains a blank for the hour of service and we do not judicially know
that every such form printed in Texas contains such a blank.
      7
        The return also states that the citation was executed by personal delivery
on Ross Mandel in the “A.M.” of August 16, 2011, as indicated by an “A”
handwritten in the blank between a typewritten “o’clock” and “M.” A copy of the
citation, which was filed with the return, was filed in the trial court at 1:23 p.m. on
the same date.

                                          13
(Tex. 2009), dictates that a return of citation, such as the one here, must state

the hour as well as the date on which the citation was served. But the opinion in

Lejuene says nothing about what a return must show regarding when citation is

served.   As explained in the opinion, the issue in that case involved the

requirement in rule 16 that “every officer or authorized person shall endorse on

all process and precepts coming to his hand the day and hour on which he

received them.”8 Id. at 256 (emphasis added) (quoting Tex. R. Civ. P. 16). The

clerk in that case failed to state the hour on which he or she received it. Id. at

255–56. Rule 16 expressly requires that the hour of receipt be stated, but it does

not require that the hour of service be stated, which is the issue in this case. See

Tex. R. Civ. P. 16.      The officer who executed the citation at issue here

specifically stated in the return that he received the citation on August 3, 2011, at

1:27 p.m., meeting the only requirement at issue in Lejeune.

      In any event, rule 107, rather than general rule 16, applies for the reasons

stated above. The officer who served Ross Mandel met all of the requirements

of the applicable rule 107 because he (1) stated the day and hour on which he

received the citation as August 3, 2011, at 1:27 p.m., meeting the requirements

in Lejeune; (2) noted the manner in which he served the citation by stating that a


      8
      Rule 16, entitled “Shall Endorse All Process” is located under section 1,
“General Rules” for practice in district and county courts and governs service of
process in general. See Tex. R. Civ. P. 16. The Mandels have not pointed out
how rule 16 differs from rule 107 so as to require the hour of service to be
endorsed on the return when rule 107 does not.

                                         14
true copy was delivered in person to Ross Mandel; (3) stated the time and place

of service as being the morning (“A.M.”) of August 16, 2011, at 6648 Castle

Pines Drive, Plano, County of Denton, Texas; and (4) signed the return officially.

We hold that the record shows on its face that service of citation on Ross Mandel

strictly complied with the Texas Rules of Civil Procedure.9        Accordingly, we

overrule the Mandels’ second issue.

B.    Lewisville ISD was not required to serve its amended petition seeking
      delinquent ad valorem taxes for 2011 on the Mandels by citation.

      The Mandels contend by their third issue that Lewisville ISD was required

to serve them with a new citation when it filed its first amended original petition

because the amended petition substituted a new cause of action for delinquent

taxes for the year 2011. The Mandels argue that when an amended pleading

asserts a new cause of action distinct from that alleged in the original pleading or

seeks a more onerous judgment and the defendant has not made an

appearance, entirely new service of process is essential to enable the plaintiff to

proceed to judgment.


      9
        To the extent that the Mandels contend that failure to set forth the hour of
service in the citation return prevented the trial court from acquiring personal
jurisdiction to render judgment against Ross Mandel, we disagree. The trial court
acquires personal jurisdiction over a defendant when the citation is served on
that defendant. See Rose v. Rose, 117 S.W.3d 84, 87 (Tex. App.—Waco 2003,
no pet.). “It is the service (of process), and not the return, which gives the Court
jurisdiction over the defendant.” A. J. Hill Co. v. Tex-Tan of Yoakum, 235 S.W.2d
945, 947 (Tex. Civ. App.—Galveston 1951, writ dism’d) (quoting Gunter’s
Unknown Heirs & Legal Representatives v. Lagow, 191 S.W.2d 111, 113 (Tex.
Civ. App.—Austin 1945, writ ref’d)).

                                        15
      Citing cases holding in other contexts that each tax year constitutes a new

cause of action, the Mandels contend that failure of Lewisville ISD to serve them

by citation with a copy of the amended petition violated their due process rights

under the Fourteenth Amendment to the United States Constitution and Article 1,

Section 19 of the Texas constitution. However, the Mandels candidly concede

that in In re E.A., the supreme court held that service under rule 21a satisfies the

requirement of service of a more onerous amended petition in order for a default

judgment against a non-answering defendant to stand. 287 S.W.3d 1, 4 (Tex.

2009). We interpret E.A. to hold further that service under rule 21a suffices to

satisfy the requirement of service of an amended petition asserting a new cause

of action as well as one that seeks more onerous relief. See id. (citing In re

R.D.C., 912 S.W.2d 854, 856 (Tex. App.—Eastland 1995, no writ) (holding that a

plaintiff who amends his or her petition may serve a non-answering defendant by

complying with the filing and service requirements of Texas Rules of Civil

Procedure 21 and 21a without regard to whether the amendment seeks a more

onerous judgment or adds a new cause of action)).10

      10
         Under the version of rule 21a in effect at the time the amended pleading
was filed in 2012, all notices other than citation could be served by delivering a
copy to the party either in person, by agent, or by certified or registered mail to
the party’s last known address or by fax to the party’s current telecopier address.
Tex. R. Civ. P. 21a, 661–62 S.W.2d XXXVII (1983, amended 1990). “A
certificate by a party or an attorney of record, or the return of an officer, or the
affidavit of any person showing service of a notice shall be prima facie evidence
of the fact of service.” Id. Rule 21a further provided that “[t]he party or attorney
of record shall certify to the court compliance with this rule in writing over
signature and on the filed instrument.” Id.

                                        16
      The Mandels argue that the certificate of service appended to Lewisville

ISD’s amended pleading and signed by its counsel of record fails to establish

strict compliance with the rules because, while the certificate would ordinarily

raise a presumption of service, no such presumption applies in a restricted

appeal.    Lewisville ISD responds that the record affirmatively reflects that it

properly served the Mandels as shown by the certificate of service certifying that

copies of the amended petition were sent to “all parties and/or their attorneys of

record in this suit, pursuant to Rule 21a of the Texas Rules of Civil Procedure, on

this 7th day of June, 2012.” We agree. The certificate of service does not

merely raise a presumption of service but is “prima facie evidence of the fact of

service,” as provided by the rule itself. Tex. R. Civ. P. 21a, 661–62 S.W.2d

XXXVII (1983, amended 1990).

      The Mandels point to no affirmative evidence or showing on the face of the

record that rebuts the prima facie evidence of service established by the

certificate of service, such as an incorrect address or zip code or return of the

certified mail as “unclaimed.”11 And even if the Mandels had produced such

evidence after judgment, the rule in Texas “has long been that evidence not

before the trial court prior to final judgment may not be considered in a [restricted


      11
        The Mandels contend that Lewisville ISD “conceded” that its attempt to
serve the Mandels by certified mail “failed” because the certified letter was
returned unclaimed. But the Mandels’ brief also candidly acknowledges that any
such concession by Lewisville ISD was outside the record. Therefore, we cannot
consider it.

                                         17
appeal] proceeding.” Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture,

811 S.W.2d 942, 944 (Tex. 1991). When a party claims in a restricted appeal

that a required notice was not given or a required hearing was never held, the

error must appear on the face of the record. Ginn v. Forrester, 282 S.W.3d 430,

433 (Tex. 2009). In absence of any proof to the contrary, the presumption is

conclusive and has the force of a rule of law. Brown v. Ogbolu, 331 S.W.3d 530,

534 (Tex. App.—Dallas 2011, no pet.).12 Thus, we hold that the certificate of

service of the amended petition by Lewisville ISD by certified mail under rule 21a

was sufficient to affirmatively establish on the face of the record strict compliance

with the rules and with due process.

      Ross Mandel steadfastly maintains that since no effective service of the

original petition was ever made on him, service of the amended petition by

certified mail pursuant to rule 21a could not suffice. But we have already held

that service of the original petition on him by citation was effective in strict

compliance with Rule 107; therefore, under E.A., service of Lewisville ISD’s first



      12
          The Mandels also argue that even if we may otherwise accord a
presumption pursuant to rule 21a, we should not do so here because service of
the amended petition on the Mandels was challenged at the default hearing in
the trial court. But the challenge was made by the attorney for the lienholder, not
by the Mandels. The trial court overruled his challenge and objection, pointing
out that the attorney did not represent the Mandels and that, in any event, no
citation was needed because this was a tax suit and the Mandels were put on
notice by the original citation that delinquent taxes could be recovered that
accrued up to the date of judgment. The trial court was correct for reasons
shown below.

                                         18
original amended petition by certified mail was sufficient under rule 21a. See 287

S.W.3d at 4. Accordingly, we overrule the Mandels’ third issue.

C.    Intervenors were not required to serve the Mandels with their
      petitions in intervention.

      The property that is the subject of the suit filed by Lewisville ISD is also

situated within the boundaries of two other taxing jurisdictions, the County and

the City. In their fourth issue, the Mandels contend that those two taxing entities

were required to and failed to have new citations served on the Mandels of their

petitions in intervention. But the Mandels overlook Rule 117a(4), which provides

that only one citation needs to be issued and served in suits for collection of

delinquent taxes despite the addition or even the potential addition of other taxing

entities. Tex. R. Civ. P. 117a(4). Subsection 4 of Rule 117a sets forth the

requirements for citation in tax suits, as follows:

      Any process authorized by this rule may issue jointly in behalf of all
      taxing units who are plaintiffs or intervenors in any tax suit. The
      statement of the nature of the suit . . . shall state, in substance, that
      in such suit the plaintiff and all other taxing units who may set up
      their claims therein seek recovery of the delinquent ad valorem
      taxes due on said property. . . . Such citation shall also show
      the names of all taxing units which assess and collect taxes on
      said property not made parties to such suit. . . .

Id. (emphasis added). Rule 117a(4) also contains this additional language:

      After citation . . . has been given on behalf of any plaintiff or
      intervenor taxing unit, the court shall have jurisdiction to hear
      and determine the tax claims of all taxing units who are parties
      plaintiff, intervenor or defendant at the time such process is
      issued and of all taxing units intervening after such process is
      issued . . . without the necessity of further citation . . . and any
      taxing unit having a tax claim against said property may . . . set up

                                          19
      and have determined its tax claim without the necessity of further
      citation or notice to any parties to such suit.

Id. (emphasis added).

      Under the express language of the rule, any taxing unit named in the

citation, although not yet a party to the tax suit, may later join the suit without

further service of process. Id. In both its original and its first amended petition,

Lewisville ISD named the City and the County as the other taxing units that

assessed and collected taxes on the property. And, as required by Rule 117a(4),

each citation served by Lewisville ISD on the Mandels likewise named those

taxing units. The citations, themselves, stated:

             Plaintiff and all other taxing units who may set up their tax
      claims herein seek recovery of delinquent ad valorem taxes on the
      property hereinabove described, and in addition to the taxes, all
      interest, penalties, and costs allowed by law thereon up to and
      including the day of judgment herein, and the establishment and
      foreclosure of liens securing the payment of same, as provided by
      law. [Emphasis added.]

The citations further advised the Mandels:

             All parties to this suit, including Plaintiff, Defendant(s) and
      Intervenors, shall take notice that claims not only for any taxes
      which were delinquent on said property at the time this suit was
      filed but all taxes becoming delinquent thereon at any time
      thereafter up to the day of judgment, including all interest,
      penalties, and costs allowed by law thereon, may upon request
      therefor, be recovered herein without further citation or notice to
      any parties herein, and all said parties shall take notice of and
      plead and answer to all claims and pleadings now on file and
      which may hereafter be filed in this cause by all other parties
      hereto, and by all of those taxing units above named, who may
      intervene herein and set up their respective tax claims against
      the property. [Emphasis added.]


                                        20
      Not only did the citations by which the Mandels were served contain the

language required by rule 117(a)(4), but Lewisville ISD also conspicuously

alleged the names of the City and the County as additional taxing entities and set

forth the language from the rule quoted above both in its original and its first

amended original petitions. The County filed its plea of intervention claiming

delinquent taxes owed by the Mandels for 2011 on November 13, 2012. The City

filed its plea in intervention on November 2, 2012, likewise claiming delinquent

taxes owed by the Mandels on the property for 2011. Under rule 117a(4), having

been named in the citations, they were entitled to do so “without further notice or

citation to any of the parties herein.” Tex. R. Civ. P. 117a(4). In essence, the

naming of the taxing units in the citations was sufficient under that rule to confer

jurisdiction over those taxing units. See Conseco Fin. Servicing, 78 S.W.3d at

674 (“We agree that this, without more, is sufficient under Rule 117a to confer

jurisdiction over intervening taxing units already named in the citation.”).

Moreover, we have previously held that intervening taxing units may join a suit

for delinquent taxes and present their claims without new citation being issued or

served on defendants. Stoker v. City of Fort Worth, No. 02-08-00103-CV, 2009

WL 2138951, at *3 (Tex. App.—Fort Worth July 16, 2009, no pet.) (mem. op.)

(rejecting argument that court lacked jurisdiction over interventions by taxing

units without new service on defendants). Accordingly, we overrule the Mandels’

fourth issue.



                                        21
D.    The Mandels have not shown denial of due process by failure to
      strictly comply with the rules governing service of process.

      By their first issue, the Mandels contend that failure to strictly comply with

the rules applicable to service of process violated their due process rights. We

held above that there was no failure by Lewisville ISD to strictly comply with the

rules of service when serving the original petition. As to service on the Mandels

by the intervening taxing units, we have also held that rule117a(4) provides that

any taxing unit named in the citation, although not yet a party to the tax suit, may

later join the suit without further service of process. See Tex. R. Civ. P. 117a(4).

      While there is some variation in wording, the procedure set forth in Rule

117a is virtually identical with the procedure set forth in former article 7345b,

including the language and procedure regarding claims for taxes by intervening

taxing units. Compare Tex. R. Civ. P. 117a, with Act of May 12, 1937, 45th

Leg., R.S., ch. 506, 1937 Tex. Gen. Laws 1494-a, repealed by Act of May 24,

1979, 66th Leg., R.S., ch. 841, § 6, 1979 Tex. Gen. Laws 2217, 2329. In 1939,

the supreme court upheld the constitutionality of article 7345b in Mexia Indep.

Sch. Dist. v. City of Mexia, 134 Tex. 95, 101–02, 133 S.W.2d 118, 121–22

(1939). In that case, the City of Mexia brought suit against a property owner to

collect delinquent taxes. Id. at 98, 133 S.W.2d at 120. Only one citation was

served on the defendant.      Id.   However, three other taxing authorities were

named in the petition and citation as defendants: Mexia ISD, the State of Texas,

and Limestone County. Id. Mexia ISD answered, filed a plea in intervention and


                                         22
filed a cross-claim against the property owner for taxes due and for foreclosure of

its lien. Id. But no new citation was served on the property owner by Mexia ISD.

Id.

         The supreme court noted that section 4 of article 7345b required the

citation to inform the recipient that he or she was required to take notice of all

present and future pleadings on file that may be filed by any and all parties. Id.

at 99, 133 S.W.2d at 120. The court further stated that just as in any ordinary

suit where the respondent can be required to take notice of all subsequent

pleadings, interventions, and cross-actions by the public generally, there was no

reason for these types of suit to require any less of a defendant who has been

served with citation. Id. at 101, 133 S.W.2d at 122. Finally, the court held that

“the notice required by the statute affords all defendants a fair opportunity to be

heard and therefore it does not violate the due process clause of our

Constitution.” Id. at 101–02, 133 S.W.2d at 122.

      Similar to the citation in Mexia, the citation in this case stated:

                All parties to this suit, including Plaintiffs, Defendants and
         Intervenors, shall take notice [of] claims not only for any taxes which
         were delinquent on said property at the time this suit was filed but all
         taxes becoming delinquent thereon at any time thereafter up to the
         day of judgment . . . and all said parties shall take notice of and
         plead and answer to all claims and pleadings now on file and which
         may hereafter be filed in this cause by all other parties . . . .
         [Emphasis added.]

         Subsequent to the decision in Mexia, our sister court held in Conseco that

current rule 117a comports with due process, noting the general rule that the

                                             23
legislature in its discretion may prescribe what notice shall be given to a

defendant in a suit, subject to the condition that the notice prescribed must

conform to the requirements of due process of law. Conseco Fin. Servicing, 78

S.W.3d at 675. In essence, rule 117a(4) means that taxing units named in a

citation as having claims for delinquent taxes on particular property, but not

parties to the tax suit, may later join the suit without further service of process or

notice. Indeed, the naming of the taxing unit in the citation is sufficient under

Rule 117a to confer jurisdiction over intervening taxing units named in the

citation. Id. at 674; see Stoker, 2009 WL 2138951, at *3.

       The purpose of citation is to give the court jurisdiction over the parties and

provide notice to the defendant that it has been sued by a particular party

asserting a particular claim, so that due process will be served and the defendant

will have an opportunity to appear and defend the action.              Conseco Fin.

Servicing, 78 S.W.3d at 675–76 (citing Sgitcovich v. Sgitcovich, 150 Tex. 398,

404, 241 S.W.2d 142, 146 (1951); Bozeman v. Arlington Heights Sanitarium, 134

S.W.2d 350, 351–52 (Tex. Civ. App.—Dallas 1939, writ ref’d)). The requirement

of due process is satisfied when the notice prescribed affords the party a fair

opportunity to appear and defend its interests. Sgitcovich, 241 S.W.2d at 146.

      Here, the citation gave the Mandels sufficient notice that they were being

sued by Lewisville ISD for delinquent ad valorem taxes on real property located

at a specific address. By naming both the City and the County, which later

intervened, the citation served with Lewisville ISD’s original petition gave the

                                         24
Mandels all the notice to which they were entitled and gave them the opportunity

to appear and defend the suit. Nothing in the record before us intimates that they

were misled or placed at a disadvantage by the citation and pleadings. Thus, we

hold that the citation served on the Mandels fully conformed with the

requirements of due process. See Conseco Fin. Servicing, 78 S.W.3d at 676;

Mexia, 134 Tex. at 101–02, 133 S.W.2d at 122. Accordingly, we overrule the

Mandels’ first issue.

E.    The Mandels were not denied due process in connection with the
      notice and order of sale.

      By their fifth issue, the Mandels complain of denial of due process with

respect to the notice and order of sale, contending that there is no evidence

apparent on the face of the record that they were ever served with either the

notice or the order in a manner calculated to reach them. For that proposition,

they rely on Jones v. Flowers, in which the United States Supreme Court held

that “[b]efore a State may take property and sell it for unpaid taxes, the Due

Process Clause of the Fourteenth Amendment requires the government to

provide the owner ‘notice and opportunity for hearing appropriate to the nature of

the case.’” 547 U.S. 220, 223, 126 S. Ct. 1708, 1712 (2006) (quoting Mullane v.

Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656–57

(1950)). In Flowers, the Court set aside a private sale of Jones’s property to

satisfy a tax delinquency by the Arkansas Commissioner of State Lands after the

Commissioner had attempted twice by certified mail to notify Jones of his tax


                                       25
delinquency and of his right to redeem the property but both certified letters had

been returned unclaimed. Id. at 223–25, 126 S. Ct. at 1712–13. The Court held

that to comport with due process, when the State was made aware that certified

letters went unclaimed, it must have taken additional steps to attempt to notify a

property owner before selling his property for delinquent taxes if it was

practicable to do so. Id. at 225, 126 S. Ct. at 1713. Based on Flowers, the

Mandels contend that Lewisville ISD and the other tax entities could not sell their

home without any evidence in the record showing the manner of service of the

notice and order of sale.

      Flowers is distinguishable. First, the sale of Jones’s home in the Flowers

case was a private, non-judicial sale whereas the sale of the Mandels’ home in

this case was by judicial foreclosure by public sale with the protections afforded

by service of citation on the Mandels, providing notice and an opportunity to

appear in court for a meaningful hearing before the final judgment ordering sale

of their home for payment of the delinquent taxes. See id. at 224, 126 S. Ct. at

1712. Second, Flowers is distinguishable because the evidence in that case

showed that the State was aware that the property owner had not received notice

because its certified letters had been returned “unclaimed.” See id. at 227, 126

S. Ct. at 1714. Third, Flowers was not a restricted appeal under Texas law in

which the error must appear on the face of the record. See id. at 224–25, 126 S.

Ct. at 1713. Unlike the record in Flowers, there is no evidence on the face of the

record that the Mandels did not receive service of process of the original petition,

                                        26
copies of the amended petition and interventions by certified mail, notice of the

trial setting, copies of the judgment, or notice and the order of sale. The record

affirmatively shows the contrary, that the Mandels were properly served with

citation of the suit to foreclose and sell their property, which also put them on

notice that the other taxing entities named could properly intervene without

additional service, and that the sheriff’s signed return of the notice and order of

sale confirmed that he mailed copies of the notice of sale to the Mandels.

      The United States Supreme Court in Flowers articulated concerns that

simply are not present in this case. The foreclosure procedures followed by the

taxing authority in Flowers were vastly different than what transpired in this case.

According to Arkansas law as revealed by the Flowers opinion, the Arkansas

Commissioner of State Lands (at least at the time of the opinion) had authority to

foreclose on delinquent taxes simply by notifying the property owner by certified

mail that property taxes were delinquent and that the tax liens were subject to

foreclosure. See id. at 223, 126 S. Ct. at 1712. The property owner was given

two years to pay the delinquent taxes. Id. If the taxes were not paid within that

time frame, the property could be sold by public sale to satisfy the outstanding

taxes owed on the property, and when no bids were submitted after the notice of

public sale was posted, Arkansas law permitted the state to negotiate a private

sale of the property. Id.

      In Flowers, the Commissioner sent two notifications to the property owner

by certified mail as required by law advising that the taxes were delinquent and

                                        27
that the property was subject to foreclosure. Id. at 223–24, 126 S. Ct. at 1712.

Both notices were returned unclaimed by the United States Postal Service. Id. at

223–24, 126 S. Ct. at 1712–13. After the two notices were returned by the post

office, the Commissioner made no further attempts to notify the property owner of

the impending tax foreclosure. Id. It was uncontroverted that the property owner

in that case never received any notice that his property would be or was sold for

taxes. See id. at 223–25, 126 S. Ct. at 1712–13.

      The Supreme Court stressed that the notices provided to the property

owner were defective because the Commissioner knew that the property owner

never received the notices. See id. at 237, 126 S. Ct. at 1720. The Supreme

Court deemed this uncontroverted failure to provide notice to be a violation of the

property owner’s due process rights. Id. at 239, 126 S. Ct. at 1721. The Court

held that, under the circumstances, the State had a constitutional duty to take

further steps to notify the property owner of the foreclosure sale. Id.

      Section 34.01 of the Texas Tax Code requires the officer charged with the

sale of real property sold pursuant to a foreclosure sale to give written notice of

the sale to each person who was a defendant under the judgment in the manner

prescribed by Rule 21a of the Texas Rules of Civil Procedure. Tex. Tax Code

Ann. § 34.01(a), (c) (West Supp. 2014). Here, the record contains the sheriff’s

return on file, which states that the sheriff “mailed to the . . . judgment debtors a

copy of said notice of sale,” confirming that the order was executed. Pursuant to

the presumption contained in Rule 21a, a sheriff’s uncontroverted return is prima

                                         28
facie evidence of the fact of service. See Tex. R. Civ. P. 21a, 661–62 S.W.2d

XXXVII (1983, amended 1990). Thus, there is evidence in the record that the

Mandels were provided with the notice of sale.

       Moreover, silence as to whether notice of the order of sale was sent does

not establish that it was not sent. See Alexander, 134 S.W.3d at 850. Nor does

silence establish that notice of the order of sale was not received. See id. at

849–50. The absence of proof from the face of the record either way is just

that—an absence of proof. Id. at 849. In a restricted appeal—where error must

be apparent on the face of the record—silence as to whether notice was sent or

received is insufficient to establish reversible error. See id. at 849–50.

      As to notice of the order of sale, section 33.53 of the Texas Tax Code

governs. See Tex. Tax Code Ann. § 33.53 (West 2008). Subsection (c) states

that an order of sale:

      (1) shall be returned to the district clerk as unexecuted if not
      executed before the 181st day after the date the order is issued; and

      (2) may be accompanied by a copy of the judgment and a bill of
      costs attached to the order and incorporate the terms of the
      judgment or bill of costs by reference.

Id. § 33.53(c). Section 33.53 does not require the officer conducting the sale or

the district clerk to note service on the property owner on the sheriff’s return of

the order of sale. See id. § 33.53. Consequently, the record is ordinarily silent

as to whether the order of sale was served. See, e.g., Alexander, 134 S.W.3d at

849 (noting that in cases dismissed for want of prosecution, the record is


                                         29
ordinarily silent as to whether or not required notices were given). The fact that

the record is silent as to the sending of the order of sale does not establish either

that the notice was omitted or that it was served.        Its absence is simply an

absence of proof of error.

      We agree with Lewisville ISD’s argument that the officer conducting the tax

foreclosure sale discharged the statutory duties set forth in tax code section

34.01 and rule of civil procedure 647. See Tex. Tax Code Ann. § 34.01; Tex. R.

Civ. P. 647.   And under Texas law, an officer who levies on property is not

required to file any documentation with the trial court clerk evidencing the notices

of sale sent to the defendants. Rule of civil procedure 647 requires the officer to

publicly advertise the sale in a newspaper and send notice of the sale to the

property owner but does not mandate filing documentation with the trial court

clerk to demonstrate compliance. Tex. R. Civ. P. 647. In addition, tax code

section 34.01(c) provides that the officer conducting the sale give written notice

of the sale pursuant to Rule 21a to each person who was a defendant to the

judgment (in person, by telephonic document transfer, or by registered or

certified mail). See Tex. Tax Code Ann. § 34.01(c); Tex. R. Civ. P. 21a, 661–62

S.W.2d XXXVII (1983, amended 1990). But Rule 21a does not mandate that

supporting documentation or certificate of mailing be filed with the trial court clerk

to memorialize or confirm the sending of notice. See Tex. R. Civ. P. 21a, 661–62

S.W.2d XXXVII (1983, amended 1990).

      If the Mandels contend the officer executing the notice and order of sale

                                         30
did not faithfully discharge the duties imposed by law with respect to the tax

foreclosure sale, their alleged grievances regarding matters occurring after the

default judgment was rendered must be directed toward other parties and

presented in a different forum. See Ginn, 282 S.W.3d at 432 (holding that when

a party claims in a restricted appeal that a required notice was not given or a

required hearing was never held, the error must appear on the face of the

record); Gen. Elec. Co., 811 S.W.2d at 944 (holding evidence not before the trial

court prior to final judgment may not be considered in a restricted appeal

proceeding). The record in this restricted appeal shows strict compliance with

respect to the service of citation and notices required in a tax foreclosure sale,

and the Mandels’ claim that the sale is defective has no support according to

applicable law. Accordingly, we overrule the Mandels’ fifth issue.

                                 V. Conclusion

       Having overruled each of the Mandels’ five issues, we affirm the

judgment of the trial court against the Mandels. We also vacate our order staying

execution of the writ of possession and lift our stay. Consequently, we also

dismiss the Mandels’ petition for writ of mandamus, seeking to have this court

compel the trial court to vacate its order denying the Mandels’ motion to quash or

vacate the writ of possession and its order denying their motion to enforce the

writ of supersedeas, as moot.




                                        31
                                         /s/ Anne Gardner
                                         ANNE GARDNER
                                         JUSTICE


PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: October 2, 2014




                                32
APPENDIX
                     COURT OF APPEALS

                   SECOND DISTRICT OF TEXAS
                        FORT WORTH

                      NO. 02-13-00171-CV


ROSS MANDEL AND LEA MANDEL                      APPELLANTS

                                 V.

LEWISVILLE INDEPENDENT                           APPELLEES
SCHOOL DISTRICT; COUNTY OF
DENTON, TEXAS; AND CITY OF
PLANO

                             ------------

      FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
                TRIAL COURT NO. 2011-0490-431

                             ------------

                               AND

                      NO. 02-13-00412-CV

IN RE ROSS MANDEL AND LEA                        RELATORS
MANDEL

                             ------------

                    ORIGINAL PROCEEDING
                TRIAL COURT NO. 2011-0490-431
                                    ------------

                                    ORDER

                                    ------------

      On January 21, 2014, we abated this appeal and this mandamus action

and ordered the trial court to conduct an evidentiary hearing to determine why

Constable Ron Smith failed to comply with this court’s November 13, 2013 order

staying execution of the writ of possession issued by the trial court clerk on

October 21, 2013, and to show cause why Constable Smith should not be held in

contempt for failing to comply with this court’s November 13 stay order.

      After a hearing on February 5, 2014, the trial court sustained Constable

Smith’s objection to our January 21 order. We issued a subsequent order on

February 28, 2014, once again directing the trial court to conduct a show-cause

hearing to determine why Constable Smith should not be held in contempt of this

court for failing to comply with our November 13 stay order. The February 28

order to show cause and notice to Constable Smith of that order were duly cited

and served on Constable Smith and specifically enumerated the actions the trial

court was permitted to take during the show-cause hearing. We reserved the

power to make any necessary findings and conclusions after receiving the record

of the hearing.

      On April 21, 2014, the trial court conducted the show-cause hearing. The

reporter’s record of that hearing was filed in this court on May 21, 2014.


                                         2
Constable Smith appeared at the hearing, was represented by counsel, and was

permitted to and did testify in defense of this court’s charge alleging that he

violated this court’s November 13 stay order.           Two of Constable Smith’s

deputies, Chief Deputy Constable Wayne Bengston and Deputy James

Ferguson, and Kurt Claussner, the purchaser of the property in question in the

above-styled and numbered causes, testified on behalf of Constable Smith.

David Brusilow, an attorney and friend of the Mandels who showed an electronic

copy of the stay order to Constable Smith, also testified. The trial court thereafter

referred the matter to this court to make any necessary findings and conclusions

and to determine whether Constable Smith was guilty of contempt.

      The contempt alleged in this matter—violation of a court order outside the

presence of the court—is constructive contempt.          Ex parte Chambers, 898

S.W.2d 257, 259 (Tex. 1995) (orig. proceeding).          A finding of contempt for

disobedience of a court order requires proof beyond a reasonable doubt of: (1) a

reasonably specific order; (2) a violation of the order; and (3) the willful intent to

violate the order. Id. However, the involuntary inability to comply with an order is

a valid defense to criminal contempt, rebutting the willfulness element of

contempt liability, “for one’s noncompliance cannot have been willful if the failure

to comply was involuntary.” Id. at 261; see also Ex parte Rohleder, 424 S.W.2d

891, 892 (Tex. 1967) (orig. proceeding).        The alleged contemnor bears the

burden of proving his inability to comply. Ex parte Chambers, 898 S.W.2d at 261




                                          3
(citing Ex parte Kollenborn, 154 Tex. 223, 226–27, 276 S.W.2d 251, 253–54

(1955) (orig. proceeding)).     Additionally, a contemnor cannot be held in

constructive contempt of court for actions taken prior to the time that the court’s

order is reduced to writing. Id.; see Ex parte Price, 741 S.W.2d 366, 368 (Tex.

1987) (orig. proceeding).

       Having considered the pleadings, motions, orders, and briefs of the parties

on file in this court, the reporter’s record of the testimony of Constable Smith and

of those named above as witnesses, the exhibits from that hearing, the verified

and certified evidence offered by Ross Mandel and Lea Mandel in support of

their mandamus petition, and the evidence proffered at the February 5 hearing,

we find that the evidence conclusively establishes that Constable Smith was

involuntarily unable to comply with our stay order for the simple reason that he

learned of it too late.

       The evidence establishes that Constable Smith did not learn of the

issuance of our stay order until he was shown an electronic copy of it that was

emailed to Brusilow by Edward Dennis, the Mandels’ attorney of record, at 5:31

p.m. on November 13, 2013. The evidence further establishes that Constable

Smith agreed, at Brusilow’s request, to wait until Dennis arrived and that he did

not receive or read the hard copy of the stay order until Dennis arrived at the

house at approximately 6:30 p.m. But by 5:30 p.m., approximately ninety-eight

percent of the Mandels’ household furnishings and personal property had been




                                         4
removed and trucks hired by the Mandels were carrying them away to storage;

possession of the house, including the keys, had been turned over to Claussner

at about 10:30 a.m. While there is no indication in our records as to precisely

when the stay order was reduced to writing, the date and time stamp of this

court’s clerk’s office shows that the motion for emergency relief was not filed in

this court until 12:40 p.m. on November 13, and the order was not faxed to the

Mandels’ attorney and the other parties in interest until approximately 5:15 p.m.

that day. Based on this evidence, we find that Constable Smith did not have

willful intent to disobey our stay order, and we decline to hold Constable Smith in

contempt.

      Accordingly, it is ORDERED that the appeal and original proceeding are

reinstated on this court’s docket. The clerk of this court is directed to transmit a

copy of this order to the trial court judge, the trial court clerk, the attorney of

record for each of the parties to the appeal and the mandamus action, the

attorney who filed an amicus brief in the appeal, and the attorney of record for

Constable Smith.

      DATED July 1, 2014.

                                                   PER CURIAM

PANEL: GARDNER, J.; LIVINGSTON, C.J.; and GABRIEL, J.




                                         5
