CIVIL PROCEDURE | SUFFICIENCY OF SERVICE PURSUANT TO RULE 21a OF AMENDED PLEADING ON
DEFENDANT WHO WAS SERVED WITH CITATION AND ORIGINAL PETITION, BUT HAS NOT ANSWERED
In the Interest of EA, No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson) (method of service of amended petition
on defendant who has not answered)(sufficiency of service by certified mail under rule 21a when Defendant
has been served with civil process, but has not filed an answer or made appearance)
THE GIST OF THE RULING: Because we conclude that a new citation is not required for
service of a more onerous amended petition on a non-answering 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
IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-CV, ___
SW3d ___, 12-06-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Chief Justice Wallace B. Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill,
Justice Medina, Justice Green, and Justice Johnson joined. [pdf version of opinion]
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice Willett joined.
(criticising abandonment of rule that default judgment cannot to be based on amended petition seeking more
onerous relief that was not served with a new citation on nonanswering defendant)
RELATED TERMS AND CONCEPTS: default judgment | sufficiency of service of civil process | service of
citation | method of service | certification of service | presumption of receipt | certified vs. regular mail |
In re E.A. and D.A., Children (Tex. 2009)
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.
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
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.
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 (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
(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
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.
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, 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.
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
 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.
 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.”