Opinion
NO. 03-16-00120-CV
04-05-2016
In re Russell Jay Reger
ORIGINAL PROCEEDING FROM TRAVIS COUNTY
MEMORANDUM OPINION
Relator Russell Jay Reger has filed a pro se petition for writ of mandamus. Reger asks this Court to compel the district court to hear his motions for default judgment and to compel discovery responses, or alternatively, to issue citation under Texas Rule of Civil Procedure 145 in cause number D-1-GN-15-001838, styled Russell Jay Reger v. The Attorney General of Texas and Lance Kutnick, Criminal Prosecutions Divison. See Tex. Gov't Code §22.221; see also Tex. R. App. P. 52.
Under Rule 145, when a plaintiff files an affidavit of indigency, "the clerk must docket the action, issue citation, and provide such other customary services as are provided any party." Tex. R. Civ. P. 145 (emphasis added). The records of the Travis County District Clerk indicate that citation was issued in the above-referenced suit and that service was attempted by certified mail, return receipt requested, as authorized by Rule 106. See id. R. 106(a)(2). However, this method of service was not successful. The certified-mail return receipts were stamped "RECEIVED IN MAIL CENTER[,] JUN 01 2015[,] OFFICE OF THE ATTORNEY GENERAL." Rule 107 requires that "when the citation was served by registered or certified mail as authorized by Rule 106, the return by the officer or authorized person must also contain the return receipt with the addressee's signature." See id. R. 107(c) (emphasis added). Service of process is defective if the return receipt is signed by someone else. Ramirez v. Consolidated HGM Corp., 124 S.W.3d 914, 916 (Tex. App.—Amarillo 2004, no pet.). If service of process is defective, then the attempted service is invalid and of no effect. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) (holding that defendant had not been served in strict compliance with Rule 106(b) because substitute service was not properly authorized absent affidavit that Rule 106(b) explicitly requires). Although defendants' counsel filed an advisory with the district court in response to Reger's motions to inform the court that there was no return of service on file indicating that defendants had been served with the petition or citation, defendants' knowledge of the pendency of the suit is not sufficient to convey jurisdiction upon the district court to render default judgment against them. Id. "Rather, jurisdiction is dependent upon citation issued and served in a manner provided for by law." Id. at 836-37.
Citation is issued when "it is sent forth from the clerk's office under his sanction and authority and given to an officer, or to some one else to give to an officer, for the purpose of being served." London v. Chandler, 406 S.W.2d 203, 204 (Tex. 1966). When the district clerk delivered the citation to the postal service to be mailed via certified mail, her duty was fulfilled. See Aguilar v. Stone, 901 S.W.2d 955, 955 (Tex. App.—Houston [1st Dist.] 1995, orig. procceding) (per curiam) (holding district clerk's delivery of citation to process server fulfilled his duty). Reger, as the party requesting service of process, has the responsibility for ensuring that service is properly accomplished. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 153 (Tex. 1994) (citing Tex. R. Civ. P. 99(a) ("The party requesting citation shall be responsible for obtaining service of the citation and a copy of the petition.")). In the absence of returns of service showing that process was served on the defendants, the district court has no ministerial duty to hear Reger's motions. Accordingly, we deny the petition for writ of mandamus. See Tex. R. App. P. 52.8.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Pemberton and Bourland Filed: April 5, 2016