The opinion
BUTTS, Justice,
dissenting.
I respectfully dissent.
I do not agree that proper substituted service was not made on Martinez. David Roach, the person served by substituted service, was an employee of Superior Pools <& Martinez, and the record shows that Roach was served. The affidavit of the process server, which is attached to the Motion for Substituted Service, without contradiction shows that he had talked with Roach, who is uncontrovertedly established as an employee, at the business location at 8769 Hwy. 90 West, San Antonio, Bexar County, Texas. Martinez was not there at the time, Roach told him. Although the address number is shown in all other places in the record before this court as 8769, on the return it is shown as 8779. Because the process server attempted futilely to serve Martinez several times, the substituted service order was granted.
TEX.R.CIV.P. 106 provides in pertinent part:
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(b) Upon motion supported by affidavit stating the location of the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted under either (a)(1) or (a)(2) at the location named in such *464 affidavit but has not been successful, the court may authorize service
(1) by leaving a true copy of the citation, with a copy of the citation attached, with anyone over sixteen years of age at the location specified in such affidavit, or
(2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit, (emphasis added)
This situation is similar to that in Mylonas v. Texas Commerce Bank-Westwood, 678 S.W.2d 519 (Tex.App.— Houston [14th Dist.] 1984, no writ). There the court stated that Rule 106 does not require that the trial judge put the proper address of appellant’s usual place of business in the order for substituted service. The constable left the citation at appellant’s usual place of business, in compliance with the rule. Id. at 523 . In the present case the record shows that the process server left the citation with the employee at appellant’s usual place of business. That is all that was required. The purpose of Rule 106 is to give notice to a defendant. That was properly done in this case. Appellant was properly served. In Mylonas the trial judge permitted that appellee to amend the citation. The return could have been amended in this case. Further, in his affidavit attached to his motion for new trial, Martinez admitted service:
“I was served with citation by substituted service upon an employee of Home Improvements. The employee mislaid the citation after it was delivered. The citation was discovered on or about March 2, 1990. This was not intentional or conscious indifference.”
This is not simply an acknowledgment of “receipt” of the citation. It is a statement that he was served. There is a difference. He was properly served. This is a judicial admission.
Further, he acknowledged service when he filed an answer (late).