IN THE SUPREME COURT OF TEXAS








IN THE SUPREME COURT OF TEXAS
 
════════════
No. 08-0157
════════════
 
In the Interest of E.A. and 
D.A., Children
 
════════════════════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Second District of 
Texas
════════════════════════════════════════════════════
 
 
            
Chief Justice 
Jefferson delivered the 
opinion of the Court, joined by Justice 
Hecht, Justice O’Neill, Justice Medina, Justice Green, and Justice Johnson.
 
            
Justice Brister filed a concurring opinion, in which 
Justice Wainright
and Justice Willett joined.
 
            
In Weaver v. Hartford Accident and Indemnity Co., 570 S.W.2d 367, 
370 (Tex. 1978), we held that “a new citation is necessary for a party who has 
not appeared when the plaintiff, by amended petition, seeks a more onerous 
judgment than prayed for in the original pleading.” In 1990, however, Texas Rule 
of Civil Procedure 21a was amended to provide for a variety of methods of 
service, including certified or registered mail, for all pleadings and court 
papers except the original petition. We must decide whether, in light of Rule 
21a, service of new citation is required for a default judgment based on a more 
onerous amended petition, or whether service under Rule 21a will suffice. We 
conclude that service under Rule 21a is sufficient. Accordingly, we reverse the 
court of appeals’ judgment and remand to the trial court for further proceedings 
consistent with this opinion.
I
Background
 
            
Emilio and Norma Avitia were married and had 
two children, E.A. and D.A. The Avitias later 
divorced, and the final decree appointed them joint managing conservators of the 
children. Norma was given the exclusive right to designate the children’s 
primary residence, and Emilio was granted visitation. Five months later, Emilio 
filed this petition to modify the parent-child relationship, seeking the 
exclusive right to designate the children’s primary residence. If a suit seeking 
such a modification is filed within one year of the prior order, the petitioner 
must attach an affidavit that contains, along with supporting facts, one of 
several allegations. Tex. Fam. Code 
§ 156.102(a),(b). Emilio’s petition had no such 
affidavit attached. Norma was served with citation but did not file an answer or 
otherwise appear.
            
Approximately three months later, Emilio filed an amended petition 
alleging that Norma had a pattern or history of drug use and requesting that he 
be appointed sole managing conservator and given a credit on his child support 
arrearage for a period during which he had intermittent physical custody of the 
children. Emilio attached a supporting affidavit making an appropriate 
allegation under Family Code section 156.102(b). Although the amended petition 
did not contain a certificate of service, Emilio alleges he sent Norma the 
amended petition via certified mail. The amended petition, transmittal letter, 
return receipt, and court order modifying the parent-child relationship all 
included the same street address in Wichita Falls but reflected three different zip 
codes. The post office attempted delivery of the amended petition three times 
before it was returned to Emilio’s counsel as unclaimed.
            
The trial court rendered a default judgment granting Emilio the exclusive 
right to designate the children’s primary residence. The court ordered no 
visitation for Norma and required her to pay child support to Emilio. Norma 
moved to set aside the default judgment and for new trial, arguing that default 
judgment was improper because Norma was not served with the amended petition. 
The trial court denied both motions. The court of appeals affirmed, __S.W.3d__, 
holding that Texas Rule of Civil Procedure 21a eliminated the requirement of an 
additional citation for service of an amended petition seeking a more onerous 
judgment on a nonanswering party. The court of appeals further held that Norma 
had constructive notice of the amended petition, and that this satisfied due 
process. Because we conclude that a new citation is not required for service of 
a more onerous amended petition on a nonanswering party, but that Norma was not 
properly served with the amended petition and did not have constructive notice 
of it, we reverse the court of appeals’ judgment and remand to the trial court 
for further proceedings.
II
Weaver and 
Rule 21a
 
            
If a defendant is properly served with process, in order to have a 
default judgment set aside, she must prove the three elements set out in 
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). 
But if the defendant never received the suit papers, she is generally entitled 
to a new trial without any further showing. Fidelity and Guar. Ins. Co. v. 
Drewery Constr. Co., 186 
S.W.3d 571, 574 (Tex. 2006) (per curiam) (citing Peralta v. Heights Med. Ctr., Inc., 
485 U.S. 80, 84 (1988)). Here there is no 
dispute that Norma was properly served with Emilio’s original petition.[1] The parties dispute only whether Norma 
was properly served with the amended petition.
The parties 
agree that a nonanswering party is entitled to some form of notice of a more 
onerous amended petition, but they dispute the manner in which such a petition 
must be served. Norma argues that service of new citation is required, while 
Emilio contends that service under Texas Rule of Civil Procedure Rule 21a is 
sufficient. In Weaver v. Hartford Accident and Indemnity Co., 570 S.W.2d 
367, 370 (Tex. 1978), we held that “new citation is necessary for a party who 
has not appeared when the plaintiff, by amended petition, seeks a more onerous 
judgment than prayed for in the original pleading.” However, in 1990, we amended 
Rule 21a to provide that several methods of delivery, including certified or 
registered mail, are appropriate for “[e]very notice required by these rules, 
and every pleading, plea, motion, or other form of request required to be served 
under Rule 21, other than the citation to be served upon the filing of a cause 
of action and except as otherwise expressly provided in these rules.” Tex. R. Civ. P. 21a. The court of 
appeals held that Rule 21a “eliminated the requirement of an additional 
citation” set out in Weaver. __S.W.3d at __.
            
We have never addressed this issue directly. Although we recently cited 
Weaver in Fidelity and Guaranty Insurance Co. v. Drewery Construction Co., 186 S.W.3d 571, 574 (Tex. 
2006) (per curiam), we did not reach the issue of 
whether the type of service required has changed in light of Rule 21a because we 
concluded that the amended petition in Fidelity was not more onerous than 
the original petition. Id.
            
The majority of courts of appeals that have cited Weaver since the 
1990 amendment to Rule 21a do not address Rule 21a. See, 
e.g., Bennett v. Wood County, 200 S.W.3d 239, 241 (Tex. App.—Tyler 2006, no 
pet.); Scott v. Tanner, No. 01-02-00668-CV, 2003 WL 22862806, at *3 (Tex. 
App.—Houston 
[1st Dist.] Dec. 4, 2003, no pet.) (mem. op.); Seeley v. KCI USA, Inc., 100 S.W.3d 276, 
278 (Tex. App.—San Antonio 2002, no pet.); Atwood v. B & R Supply & 
Equip. Co., 52 S.W.3d 265, 267 (Tex. App.—Corpus Christi 2001, no pet.); 
Cohen v. Cohen, No. 05-93-00192-CV, 1994 WL 121118, at *2 (Tex. 
App.—Dallas Apr. 6, 1994, no writ) (not designated for publication); 
Lim v. Botello, No. A14-90-00481-CV, 1991 WL 36980, at *1 (Tex. App.—Houston [14th Dist.] Mar. 21, 1991, writ 
denied) (not designated for publication). Aside from the court of appeals in 
this case, only two courts of appeals have squarely addressed whether 
Weaver’s service of new citation requirement applies in light of Rule 
21a, and both concluded that it does not. See Sw. 
Constr. Receivables, Ltd. v. Regions Bank, 162 
S.W.3d 859, 865 (Tex. App.—Texarkana 2005, pet. denied); In re R.D.C., 
912 S.W.2d 854, 855-56 (Tex. App.—Eastland 1995, no writ); see also William V. Dorsaneo, III, 7 Tex. Litigation 
Guide § 111.02[11] (2008) (noting that cases that still follow 
Weaver–and Weaver itself–“arguably conflict with Civil Procedure 
Rule 21a, as amended in 1990”); 1 Judge 
John D. Montgomery et al., Texas Family Law: Practice & Procedure § 
4.02[1] (2009) (providing that “a plaintiff who amends his or her petition may 
serve the defendant by complying with the filing and serving 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”) (citing 
In re R.D.C., 912 S.W.2d at 855-57).
            
Rule 21a applies to all pleadings required to be served under Rule 21 
other than the original petition and except as provided in the rules. Nothing in 
the rules requires a plaintiff to serve a nonanswering defendant with new 
citation for a more onerous amended petition. While a nonanswering defendant 
must be served with a more onerous amended petition in order for a default 
judgment to stand, we agree with the court of appeals that Rule 21a service 
satisfies that requirement. This interpretation “eliminates the uncertainty and 
confusion that is found in the cases regarding what constitutes a ‘more onerous 
judgment’ or a new ‘cause of action.’” In re R.D.C., 912 S.W.2d at 856 
(noting that Rule 21a now governs over “ambiguous rules that have evolved as to 
when a new citation must be served”) (citing 2 Roy W. 
McDonald, Texas Civil Practice §§ 10:15-16 
(1992)). To the extent Weaver conflicts with Rule 21a, the rule 
prevails.
III
Service
 
            
We must then determine, however, whether Emilio served the amended 
petition in compliance with Rule 21a. Under that rule, court papers served by 
certified mail must be sent “by certified or registered mail, to the party’s 
last known address.” Tex. R. Civ. P. 
21a. Service by mail is “complete upon deposit of the paper, enclosed in 
a postpaid, properly addressed wrapper, in a post office or official depository 
. . . .” Id.
            
Even assuming that the amended petition was properly addressed, a point 
that Norma disputes, any presumption of service arising from Emilio’s mailing of 
the amended petition was negated by the amended petition’s return as unclaimed. 
__S.W.3d at __. The presumption of service under Rule 
21a “is not ‘evidence’ and it vanishes when opposing evidence is introduced that 
[a document] was not received.” Cliff v. Huggins, 724 
S.W.2d 778, 780 (Tex. 1987).
            
Rule 21a further provides that the party or attorney of record shall 
certify compliance with the rule “in writing over signature and on the filed 
instrument.” Tex. R. Civ. P. 21a. 
A certificate of service is prima facie evidence of the fact of service, but 
nothing in the rule “preclude[s] any party from offering proof that the notice 
or instrument was not received, or, if service by mail, that it was not received 
within three days . . . .” Id. Because the amended petition 
does not include a certificate of service, Emilio has not made a prima facie 
case of the fact of service on this basis.
            
Nonetheless, the court of appeals concluded that Norma received 
constructive notice of the amended petition and that this satisfied due process. 
__S.W.3d at __. The court of appeals relied on the post 
office’s repeated attempts to deliver the petition, one of the children’s testimony that Norma knew about the lawsuit,[2] and Emilio’s attorney’s statement that 
she sent Norma a copy of the amended petition via regular mail and it was not 
returned. Id. The court of appeals also noted 
that despite the fact that the later modification order, like the amended 
petition, was returned unclaimed, Norma timely moved to set the order aside. 
Id. The 
court of appeals held that even when a party does not receive actual notice, if 
the serving party has complied with Rule 21a, constructive notice may be 
established “‘if the serving party presents evidence that the intended recipient 
engaged in instances of selective acceptance or refusal of certified mail 
relating to the case or that the intended recipient refused all deliveries of 
certified mail.’” Id. (quoting Etheredge v. Hidden Valley Airpark Ass’n, Inc., 169 S.W.3d 378, 381-82 (Tex. App.—Fort 
Worth 2005, pet. denied)).
            
We have never decided whether constructive notice of a more onerous 
amended petition satisfies due process. Assuming, without deciding, that it 
does, the record in this case is insufficient to establish constructive notice. 
Emilio presented no evidence that Norma avoided or refused delivery of the 
amended petition, nor that she received the certified 
mail notices. The mere fact that the certified mail was returned unclaimed is 
not sufficient to show avoidance or refusal where, as here, the relevant 
documents reflect three different zip codes for Norma’s address, and the 
pertinent pleading lacks a certificate of service. The child’s testimony 
regarding Norma’s knowledge of the lawsuit was vague and did not address Norma’s 
knowledge of the amended petition. Moreover, that Norma learned of the 
modification order does not mean she received notice of the amended petition. 
Emilio’s attorney asserted that she sent Norma a copy of the amended petition 
via regular mail and that copy was not returned. However, standing alone, this 
is insufficient to establish that Norma had constructive notice of the amended 
petition.
IV
Conclusion
 
            
In order for a default judgment to stand, a nonanswering party must be 
served with a more onerous amended petition under Rule 21a. Service of new 
citation is no longer required. There is no evidence, however, that Norma was 
served with the amended petition under Rule 21a or that she had constructive 
notice of the amended petition. Accordingly, without hearing oral argument, we 
reverse the court of appeals’ judgment and remand to the trial court for further 
proceedings consistent with this opinion. Tex. R. App. P. 59.1.
 
______________________________
Wallace B. Jefferson
Chief Justice
 
OPINION 
DELIVERED: June 5, 2009
 
 








[1] 
In the court of appeals, Norma argued that under Texas Rule of Civil Procedure 
107, the certified receipt must be on file for ten days before the final 
hearing, as opposed to ten days before the final judgment is rendered.  The 
court of appeals rejected this argument, and Norma does not raise the Rule 107 
issue in this Court. 

[2]  At the hearing on Emilio’s motion to 
modify, E.A. was asked whether Norma knew about the lawsuit.  He 
responded:  “[s]he – I mean, letters – she got letters, like, go to her 
house.  She should be informed.”
 