in the Interest of J. M. H. and G. M. H., Children

NO. 12-21-00063-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF § APPEAL FROM THE 354TH

J.M.H. AND G.M.H., § JUDICIAL DISTRICT COURT

CHILDREN § RAINS COUNTY, TEXAS

MEMORANDUM OPINION
Brittany Bellot brings this restricted appeal of the trial court’s default judgment rendered
in a Suit Affecting the Parent-Child Relationship (SAPCR). In three issues, Bellot argues that
error is apparent on the face of the record because the trial court’s final orders (1) granted relief
which was not supported by José Hermenegildo’s pleadings, (2) lacked evidentiary support, and
(3) granted relief prohibited by the Texas Family Code. We reverse and remand.

BACKGROUND
Hermenegildo and Bellot have two children together but never were married. In the
underlying SAPCR action, Hermenegildo sought an order granting a joint managing
conservatorship, wherein he would be designated as the conservator with the exclusive right to
designate the children’s primary residence.
On September 23, 2020, Hermenegildo appeared at a hearing on the matter. Bellot did
not answer and did not appear at the hearing. The trial court granted Hermenegildo’s request for
a no-answer default judgment and signed its “final orders” on October 26, 2020. Bellot brought
this restricted appeal within six months of the date the trial court signed its final orders.

1
RESTRICTED APPEAL - DEFAULT JUDGMENT
In her second issue, Bellot argues that the trial court’s final orders are void due to errors
that are apparent from the face of the record because the orders, rendered by default, lacked
evidentiary support.
Standard of Review
To prevail on her restricted appeal, Bellot must establish that (1) she filed notice of the
restricted appeal within six months after the judgment was signed, (2) she was a party to the
underlying lawsuit, (3) she did not participate in the hearing that resulted in the judgment
complained of and did not timely file any postjudgment motions or requests for findings of fact
and conclusions of law, and (4) error is apparent on the face of the record. See TEX. R. APP. P.
30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Review by restricted
appeal affords the appellant a review of the entire case, just as in an ordinary appeal, with the
only restriction being that any error must appear on the face of the record. Conseco Fin.
Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 670 (Tex. App.–Houston [14th Dist.]
2002, no pet.) (citing Norman Comm’cns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex.
1997)); Lewis v. Ramirez, 49 S.W.3d 561, 564 (Tex. App.–Corpus Christi 2001, no pet.). The
face of the record for purposes of a restricted appeal consists of all the papers on file before the
judgment as well as the reporter’s record. Conseco Fin. Servicing Corp., 78 S.W.3d at 670;
Lewis, 49 S.W.3d at 564.
Here, Bellot perfected this appeal within the jurisdictional time limits and was a party to
the suit. Furthermore, she did not participate in the hearing that resulted in the judgment of
which she now complains. And while she did file a “Motion to Set Aside Default Judgment,”
she filed this motion more than four months after the expiration of the trial court’s plenary
power. Thus, having determined that Bellot met the first three jurisdictional elements of a
restricted appeal, we must determine if there is error on the face of the record.
Proof of Service of Process and Default Judgment
As part of her second issue, Bellot contends that there is no proof admitted at trial or
which otherwise exists in the record that Hermenegildo complied with mandatory service
requirements so as to prove his entitlement to a default judgment.
Proper citation and return of service are crucial to establishing personal jurisdiction. See
TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318–19 (Tex. App.–Austin 2002, no pet.).

2
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. See Primate Constr., Inc. v. Silver, 884
S.W.2d 151, 152 (Tex. 1994); Arnell v. Arnell, 281 S.W.3d 549, 551 (Tex. App.–El Paso 2008,
no pet.); Renaissance Park v. Davila, 27 S.W.3d 252, 255 (Tex. App.–Austin 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, and a plaintiff
defending a default judgment must show strict compliance with the procedural rules governing
citation and return of service. See Silver, 884 S.W.2d at 152; In re Z.J.W., 185 S.W.3d 905,
906–07 (Tex. App.–Tyler 2006, no pet.). Virtually any deviation will be sufficient to set aside
the default judgment in a restricted appeal. See In re Z.J.W., 185 S.W.3d at 907; Becker v.
Russell, 765 S.W.2d 899, 901 (Tex. App.–Austin 1989, no writ).
“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, the manner in which he executed them,
and the time and place the process was served and shall sign the returns officially.” TEX. R. CIV.
P. 16. Likewise, Texas Rule of Civil Procedure 105 requires that the officer or authorized person
to whom process is delivered shall endorse thereon the day and hour on which he received it and
shall execute and return the same without delay. See TEX. R. CIV. P. 105.
In the instant case, no exhibits were admitted at the hearing on this matter in support of
the existence of proper citation and return of service, and neither Hermenegildo nor the trial
court made any reference to their existence. Instead, the trial court only noted that before the
hearing began, it verified that no answer had been filed by Bellot. Based on our review of the
entirety of the record before us, there is no evidence of proper citation and return of service. 1
Therefore, because there is no affirmative showing that Hermenegildo served Bellot with process
as required by the Texas Rules of Civil procedure, we hold that there is error on the face of the
record. See Arnell, 281 S.W.3d at 552. Bellot’s second issue is sustained in part. 2

1
Hermenegildo did not file a responsive brief in this restricted appeal, nor did he request that the clerk’s
record be supplemented to include any relevant items omitted therefrom. See TEX. R. APP. P. 34.5(c)(1).
2
Because our resolution of this portion of Bellot’s second issue is dispositive of her restricted appeal, we
do not consider the remainder of her second issue or her first and third issues. See TEX. R. APP. P. 47.1.

3
DISPOSITION
Having sustained Bellot’s second issue in part, we reverse the trial court’s default
judgment and remand the cause for further proceedings consistent with this opinion.

BRIAN HOYLE
Justice

Opinion delivered March 23, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

4
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 23, 2022

NO. 12-21-00063-CV

IN THE INTEREST OF J.M.H. AND G.M.H., CHILDREN

Appeal from the 354th District Court
of Rains County, Texas (Tr.Ct.No. 10901)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
on the face of the record in the court below, it is ORDERED, ADJUDGED and DECREED by
this Court that the judgment be reversed and the cause remanded to the trial court for further
proceedings in accordance with the opinion of this Court; and that this decision be certified to
the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

5