615 S.W.3d 212
Tex. App.2020Background
- In 1998 Reeves County taxing entities sued roughly 673 defendants for delinquent ad valorem taxes, attaching a lengthy, confusing list of mineral interests and owners to the petition.
- Taxing entities' attorney filed a conclusory affidavit claiming owners were nonresidents/absent/transients/unknown after "diligent inquiry," and the court authorized service by posting under Tex. R. Civ. P. 117a; no citations for personal service appear in the court file.
- A judgment (not naming individual defendants) was entered against an attached list; Elizabeth Mitchell was listed with a tax liability, and the properties were sold at sheriff’s sale.
- In 2015 Mitchell’s children sued to set aside the sale, producing eight certified warranty deeds recorded in 1983 showing Elizabeth Mitchell’s ownership and a P.O. Box mailing address on public deed records.
- The Mitchells argued the taxing entities failed to exercise due diligence to obtain personal service (violating Mullane/Mennonite due process principles) and that the judgment was void as to Mitchell; the trial court granted summary judgment to the buyers.
- The concurrence (Chief Justice Alley) agrees with the judgment but criticizes the rule precluding consideration of extrinsic evidence in collateral attacks and urges reexamination or an exception for public records referenced in the service affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether recorded deed/mailing address can be considered in a collateral attack to show inadequate service/due diligence | Deeds are certified public records showing Mitchell's address; taxing entities swore they searched public records, so those records should be considered and would show lack of due diligence | Longstanding Texas rule forbids consideration of extrinsic evidence in collateral attacks on judgments; presumption of regularity supports the judgment | Court: Under existing precedent the deed records are extrinsic and cannot be considered here, so plaintiffs cannot prevail on collateral attack on this record |
| Whether failure to personally serve Mitchell and reliance on posting violated constitutional due process | If the deeds are considered, the proof would show Mitchell was reasonably identifiable and entitled to mailed or personal service under Mullane/Mennonite; posting alone was inadequate | Taxing entities contend affidavit and testimonial recitations established diligent inquiry supporting alternate service by posting | Court: If deeds were admissible, plaintiffs would have presented a viable due process claim; but court did not reach the merits because it refused to consider extrinsic deeds |
| Whether an exception should be created allowing public records referenced in a service affidavit to be treated as part of the record (incorporation-by-reference) | Public deed records are non‑self‑serving, certified public records; taxing entities’ affidavit expressly referenced a public-record search, so those records should be examinable in collateral attack | Creating an exception would overturn long-standing common-law rule and is beyond an intermediate court’s role; any change should come from the supreme court | Court: Declines to create a new exception; an intermediate court should not alter the 125‑year rule—leave reconsideration to the Texas Supreme Court |
Key Cases Cited
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (notice must be reasonably calculated to apprise interested parties)
- Mennonite Bd. of Missions v. Adams, 462 U.S. 791 (publication alone inadequate when name and address are reasonably ascertainable)
- Schroeder v. City of New York, 371 U.S. 208 (deed and tax-roll records can require more than publication for due process)
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (substituted service is a last resort; diligence measured by quality of search)
- PNS Stores, Inc. v. Rivera, 379 S.W.3d 267 (Tex. 2012) (distinguishing technical defects from jurisdictional defects and noting presumption of regularity may be overcome)
- York v. State, 373 S.W.3d 32 (Tex. 2012) (discussing the no-extrinsic-evidence rule and its historical rationale)
- Templeton v. Ferguson, 33 S.W. 329 (Tex. 1895) (early articulation of rule barring extrinsic evidence in collateral attacks)
- Crawford v. McDonald, 33 S.W. 325 (Tex. 1895) (same historical foundation for the rule)