Unreported / Non-Citable
Background
Bibiana Carrasco petitioned to adjudicate Attauyo “Ty” Nsekhe’s parentage of X.I.C. After process servers unsuccessfully attempted personal service four times at a Grand Prairie address, the trial court authorized substituted service requiring both delivery of the papers to someone older than sixteen at that address and transmission by text message. The process server sent the text but did not complete the required delivery at the address.
Carrasco obtained a second substituted-service order after submitting affidavits that did not provide additional probative facts showing Nsekhe could probably be found at the Grand Prairie address or that the proposed methods would reasonably notify him. Process servers later texted the papers and taped documents to the residence’s door. Nsekhe did not appear, and the trial court ultimately entered a default parentage order requiring child support and attorney’s fees. Evidence in the record identified a Dallas address for Nsekhe, and the clerk mailed the final order there. The final order also listed a phone number different from the one previously used in the service attempts.
Nsekhe brought a restricted appeal. He challenged both orders authorizing substituted service, compliance with those orders, and the awards of child support and attorney’s fees. Carrasco did not file an appellate brief.
The Court’s Holding
The Seventh Court of Appeals held that the affidavits supporting both motions for substituted service failed to strictly comply with Texas Rule of Civil Procedure 106(b). The affidavits did not supply probative facts establishing that the Grand Prairie address was a location where Nsekhe could probably be found or that service at that address or by text would be reasonably effective to notify him. Carrasco’s statement that Nsekhe could be found at the address was conclusory, while a printout based on a 2001 driver’s license was unauthenticated and unexplained.
Because the affidavits could not support the substituted-service orders, the attempted service under those orders was invalid. The trial court therefore lacked personal jurisdiction over Nsekhe when it entered the default judgment, constituting error apparent on the face of the record. The appellate court reversed the judgment and remanded for further proceedings.
The court sustained Nsekhe’s first three issues. Because those rulings required reversal, it did not reach his challenges to the evidentiary support for child support or the award of attorney’s fees.
Key Takeaways
- A Rule 106(b) affidavit must contain specific, probative facts showing where the defendant can probably be found and why the proposed substituted method will likely provide notice.
- Unsuccessful visits to an address, a conclusory assertion that the defendant lives there, and an unauthenticated decades-old database record did not establish the required connection to the address.
- Defective substituted service deprived the trial court of personal jurisdiction and required reversal of the default judgment on restricted appeal.
Why It Matters
The decision underscores that Texas courts strictly enforce substituted-service requirements when reviewing default judgments. Plaintiffs must establish the factual reliability of the address, phone number, or other proposed service channel rather than rely on conclusory statements or stale, unauthenticated information.
It also illustrates the jurisdictional consequence of inadequate service: when the supporting affidavits do not satisfy Rule 106(b), later attempts to follow the resulting service orders cannot support a default judgment.