Appendix — Joiner v. Vasquez

Supreme Court brief1983

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82-1993 phage

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term 1982

WILLIAM H. JOINER, JR.,

Petitioner

Vv.

KAREN H. VASQUEZ,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF TEXAS

FOR THE FIFTH SUPREME JUDICIAL DISTRICT

APPENDIX

Thomas C. Railsback

Charles H. Robertson, Inc.

3016 LTV Tower

Dallas, Texas 75201

214/748-9211

Counsel for Petitioner

Opinions

of Texas

Judicial

TABLE OF CONTENTS

of the Court of Appeals

for the Fifth Supreme

District and dissenting

opinions:

ae of the court, per

“Ssittard, C.J., December

11, 1981

Opinion of the court en

bane on motion for re-

hearing, per Guittard,

C.J., March 17, 1982

Dissenting opinion per

Akin, J., March 17, 1982

Dissenting opinion per

Guillot, J., March 17, 1982

Judgment of the Court of

Appeals of Texas for the

Fifth Supreme Judicial

District, December 11, 1981

Order of the Court of Appeals

of Texas for the Fifth Su-

preme Judicial District

overruling appellant's

motion for rehearing, March

17, 1982 R

Record of Order of the

Court of Appeals of Texas

for the Fifth Supreme

Judicial District over-

ruling appellant's second

amended motion for re-

hearing, April 30, 1982

A21

A65

A67

A69

Order of the Supreme Court of

Texas refusing petitioner s

application for writ of error

as presenting no reversibl

error, January 29%, 1983

Order of the Supreme Court of

Texas overruling petitioner's

motien for rehearing, March

9, 1983

First amended petition for

bill of review in cause

number 80-7-1! in the dis-

trict Court of Dallas

County, Texas, for the

304th Judicial District

Plea in bar and motion to

dismiss in cause numoer

80-7-W in the District

Court of Dallas County,

Texas, for the 394th

Judicial District

Order of the District

Court of Dallas County,

District cd ;

: 7 41717 = “74 ‘. oT,

ing D1lii Ort revl “ P= ¢'

on = .?

cause number 60-/-*,

April 14, 1980

Motion for rehearing in

cause number $9-7-W in

the District Court of

Dallas County, Texas, for

the 304th Judicial Dis-

ee nr ee a a

Order of the District Court

of Dallas County, Texas, for

the 304th Judicial District

denying motion for reharing

in cause number 80-7-W, May

i, GR a ase a ee

A70

A72

"be

A97

A99

= A101

Excerpts from brief for

appellant (pp. 8-12, 17-20),

in the Court of Appeals of

Texas for the Fifth Supreme

Judicial District nm

Excerpt from appellant's

motion for rehearing (pp.

2-4) in the Court of Appeals

of Texas for the Fifth

bl * * * .

Supreme Judicial Distric

Excerpt from appellant's

second amended motion for

rehearing (pp. 3-4) in the

Court of Appeals of Texas

for the Fifth Supreme

Judicial District

Excerpt from petitioner's

application for writ of

error in the Supreme Court

of Texas

A192

A123

A128

a€€ iva eeraice 7 ner'tec¢ nracant } ll of

oe a ak pecause Ol = & bo | + sacri D1 i a &

- bh - 3 3

review 1S bdDarrec Dy a judgment rendered

against Joiner in an earlier bill of

review alleging similar grounds.

The record reflects that Joiner was

married to Karen in 1967 and thereafter

two children were born to them while they

were residents of the State of Oklahoma.

The parties were divorced in 1971 in

Oklahoma proceedings, and the children

remained in Oklahoma until 1974, when

they moved to Texas. In 1976 Karen

instituted a proceeding in the juvenile

court of Dallas County to terminate

Joiner's parental rights. A guardian ad

litem was appointed to represent the

children's interest. Personal service of

process was first attempted upon Joiner

and, thereafter, service was undertaken

by publication and an attorney ad litem

was appointed to represent Joiner. On

June 3, 1976, following a trial before

On the following February 24, 1977,

Joiner filed his first bill of review

attacking the termination decree on the

grounds that he had a meritorious defense

to the grounds alleged in the termination

petition, that the record contained no

dence that termination of his parental

rights would be in the best interest of

the children, that he was not served by

personal service and had no knowledge of

the suit or the trial, that the appointed

attorney ad litem did not contact him,

that he was prevented from presenting his

meritorious defense without negligence on

his part, that the evidence at the trial

did not support termination of his

parental rights, and that in these

respects he was denied his

constitutional rights.

The court heard evidence on this

rst bill of review and denied the

relief sought by an order signed

September 22, 1977. Joiner did not

appeal. Instead, the filed a second bill

of review on the same grounds, which the

court dismissed on a plea of res

judicata. Again, he did not appeal. His

present and third bill of review was filed

January 3, 1980. In this bill of review

he alleges the same grounds as in his

first bill of review and other grounds as

well. He alleges that citation by

publication in the termination suit was

improper because the officer's return did

not show diligence in attempting personal

service, that the appointed attorney ad

litem did not provide effective

representation, and that the evidence

before the court in the earlier suit was

insufficient to support termination. He

also alleges that section 11.09 of the

Texas Family Code, which authorizes

citation by publication to persons who

cannot be notified by personal service or

unconstitutional because it requires

publication only one time. He alleges

that the first bill of review was

brought within two years, the time

permitted by Rule 329 of the Texas Rules

of Civil Procedure for a motion for new

trial after a judgment is rendered on

Citation served by publication. He

further alleges that the judgment of

September 22, 1977, denying his first

bill of review, does not bar his present

bill of review "because the defense of

res judicata is not applicable to

jurisdictional questions."

In response to the third bill of

review, Karen filed a plea of res

judicata based on the judgment denying

the first bill of review. At a pretrial

hearing the plea of res judicata was

sustained and judgment was rendered that

the bill of review "be and the same is

denied as a matter of law." The judgment

recites that a guardian ad litem

appointed by the court appeared and

represented the children, but no pleading

by him is shown.

Joiner first argues that the trial

court was in error in sustaining the plea

of res judicata because the facts he

pleaded showed that the termination

decree was void, and, therefore, the

judgment denying the first bill of review

could not give the void termination

decree any validity or bar his current

attack. To support this argument, Joiner

relies on judicial expressions, such as

those in Fulton v. Finch, 162 Tex. 351,

346 S.W.2d 823, 827 (1961), and Dews v.

Floyd, 413 S.W.2d 800, 804-05 (Tex. Civ.

App. - Tyler 1967, no writ), to the

effect that a void judgment is a nullity

and may be disregarded anywhere at any

time. From this premise, Joiner reasons

that a judgment denying a bill of review

does not bar a subsequent bill of review

if the original judgment is void.

Consequently, he insists, no matter how

many bills of review may be attempted

unsuccessfully, none can result in final

disposition of the controversy until the

voidness of the original judgment is

correctly declared or the rights of third

parties have intervened.

This argument is untenable for two

reasons. First, the termination decree

is not "void" in the sense that that term

is used in the cases cited. It is a

judgment which the juvenile court had

jurisdictional power to render in the

sense of jurisdiction over the subject

matter. It is alleged to be "void" only

because of lack of proper service of

process, that is to say, lack of

jurisdiction of the person. Since it

reveals no lack of jurisdiction on its

face and recites proper service, it is

not subject to collateral attack. Pure

Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d

932, 934-35 (1935); Crawford v. McDonald,

88 Tex. 626, 33 S.W. 325, 328 (1895);

Imatani v. Marmolejo, 606 S.W.2d 710, 713

( Tex. Civ. App. - Corpus Christi 180, no

writ). Such a judgment is subject to

attack only by a bill of review in which

evidence of lack of service is adduced

and a meritorious defense is shown. Deen

v. Kirk, 508 S.W.2d 70, 72 (Tex. 1974);

McEwen v. Harrison, 162 Tex. 125, 345

S.W.2nd 706, 710 (1961). For example, a

divorce decree may be attacked in a bill

of review on the ground that the record

affirmatively shows that a waiver of

process is invalid, but it is not subject

to collateral attack on that ground,

since the court had jurisdictional power

to determine validity of the waiver and

to render the decree. Thus, we cannot

agree that a termination decree rendered

on defective service by publication is

"yoid" in the sense that it may be

disregarded anywhere and at any time.

Deen v. Kirk, supra.

Second, the plea of res judicata was

properly sustained because the judgment

denying the first bill of review is

conclusive on the issue of the court's

jurisdiction in the termination suit.

The first bill of review was a direct

attack, and might properly have been

considered as a motion for new trial

within rule 329, to which the strict

requirements of a bill of review did not

apply because citation was served by

publication and the bill of review was

filed within two years. Nevertheless, a

direct attack was made, the jurisdiction

of the juvenile court in the termination

proceeding was put in issue, relief was

denied, and Joiner did not appeal. That

judement bars the present bill of review

under the well-settled rule that a party

is bound by an adjudication of the

court's jurisdiction in a contested

proceeding. RESTATEMENT OF JUDGMENTS §9

(1942).

Under this rule, a Texas court is

bound by its own earlier judgment

determining an issue of jurisdiction.

Farmer v. Saunders, 128 S.W. 941, 942

(Tex. Civ. App. 1910, no writ). The rule

is based on the principle that there must

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has had his day in court with an

opportunity to present his evidence and

his view of the law, there is no reason

to believe that the second decision will

be more satisfactory than the first.

Stoll v. Gottlieb, 305 U.S. 165, 171-72

Al0

(1938). Moreover, judicial power

includes the power to make erroneous a5

well as correct decisions; otherwise a

judgment would always be subject to

attack on its merits, and litigation

would never end.

Under these well-established rules,

even though the original termination

decree may be void -- or, more properly,

voidable ~- in the sense that it was

rendered without valid service of

process, the judgment in the first bill

of review is valid and stands as a bar to

the present bill of review. No attack on

the bill-of-review judgment is made here

for lack of jurisdiction over either

parties or subject matter in that

proceeding. Obviously, if the court had

granted relief setting aside the

termination decree and restoring Joiner's

parental rights, and no appeal had been

taken, all parties would have been bound.

All

If the contrary determination was

erroneous for any of the reasons now

alleged, Joiner's remedy was to appeal.

His right to attack the termination

decree died with his failure to appeal

from the denial of his first bill of

review. See Layton v. Layton, 538

S.W.2d 642, 648 (Tex. Civ. App. - San

Antonio 1976, writ ref'd n.r.e.).

Joiner insists that he should not be

bound by the judgment denying his first bill

of review because he has raised

additional issues that were not raised in

that proceeding. In particular, he

asserts that the best interest of the

children is the paramount consideration

and their interest has never been

determined. Although this argument has a

strong appeal, it cannot prevail against

the established rules governing the

finality of judgments announced by the

authorities above cited. Assertion of

Al2

additional grounds which, by the use of

diligence, might have been tried in an

earlier proceeding does not avoid the bar

of res judicata. Rizk v. Mayad, 603

S$.W.2d 733, 775-76 ( Tex. 1980); Ogletree

v. Crates, 363 S.W.2d 431, 435 ( Tex.

1963). Otherwise a resourceful lawyer

could always allege an additional ground

and litigation would never end. Since in

the first bill of review (or motion for

new trial under rule 329) Joiner

presented or had the opportunity to

present all the facts challenging the

jurisdiction of the court rendering the

termination decree, as well as facts

showing his meritorious defenses, and the

court rendered an adverse judgment from

which he took no appeal, the trial court

properly sustained the plea of res

judicata.

Neither can we accept Joiner's

premise that established rules governing

finality of judgments do not apply when

the interests of minor children are at

issue. He argues that so long as no

rights of third parties have intervened,

as in the case of an adoption, the merits

of the termination decree should be

subject to review. We cannot agree that

the principle of finality of judgments

does not apply to children. Rather, it

applies to them with a special force, as

the supreme court has recognized.

Knowles v. Grimes, 437 S.W.2d 816, 817

(Tex. 1969); Ogletree v. Crates, 363

S.W.2d 431, 436 (Tex. 1963). The reason

is stated in Ogletree, which involved an

allegation that an earlier custody decree

was procured by fraud. The supreme court

said:

There may be a technical

distinction between a suit

to obtain custody and

possession of a minor child

through modification of a

final judgment and a suit to

obtain custody and possesssion

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under rule 166 of the Texas Rules of Civil

Procedure, final disposition upon a plea

ef res judicata may be had only on motion

for summary judgment or trial on the

merits. See Kelley v. Bluff Creek Oil

Co., 155 Tex. 180, 309 S.W.2d 208 (1958);

Phipps v. Miller, 597 S.W.2d 458 (Tex.

Civ. App. - Dallas 1980, writ ref'd

n.r.e.); Piper v. Estate of Thompson, 546

S.W.2d 243 (Tex. Civ. App. - Houston 1966,

no writ). We do not disagree with these

authorities, but they have no application

here. No further evidence was needed on

the plea of res judicata because the

record then before the court affirmatively

showed that Joiner could not have

prevailed on the merits. The conclusive

bar of the judgment in the first bill of

review is shown by Joiner's own pleading

in the third bill of review, which

Al6

affirmatively alleges the prior

proceeding. Also, the court was required

to take judicial notice of its own earlier

records, which have been brought forward

in our present transcript. Victory v.

State, 138 Tex. 285, 158 S.W.2d 760, 763

(1942). Since Joiner's own pleading and

records within the court's judicial

knowledge affirmatively show that the only

question presented was a matter of law, in

that no facts could have been shown in a

trial on the merits that would prevent the

application of the bar of res judicata, we

hold that at the time of the pretrial

hearing the case was ripe for judgment

sustaining the plea of res judicata and

denying the relief sought by the bill of

review. Ellis v. Woods, 453 S.W.2d 509,

510 (Tex. Civ. App. - El Paso 1970, no

writ); Pan American Petroleum Corp. v.

Texas Pacific Coal & Oil Co., 340 S.W.2d

548, 554-55 (Tex. Civ. App. - El Paso

Al7

1960, writ ref'd n.r.e.).

We need not determine whether

Joiner's minor children have a right to

attack the termination decree. They were

represented by an appointed guardian ad

litem in the original termination suit

under the authority of section 11.10 TEX.

FAM. CODE ANN. (Vernon Supp. 1980-81).

The guardian ad litem did not appeal that

decree. Neither the children nor the

appointed guardian were parties to

Joiner's first bill of review. In the

present suit the trial court appointed a

new guardian ad litem. The new guardian

sought no affirmative relief on behalf of

the children in the trial court and did

not perfect an appeal from the trial

court's dismissal of Joiner's bill of

review. Before this court, the guardian

ad litem has filed a brief advancing the

same arguments as those presented by

Joiner and urging that Joiner be given

Al8

relief by this appeal, but the guardian

makes no separate claim for relief on

behalf of the children. Since the

children did not seek a bill of review of

the termination decree by any pleading or

evidence offered to the trial court in

their own behalf, we limit our

consideration to the rights asserted by

Joiner. Consequently, this opinion should

not be interpreted as holding that any

relief sought on behalf of the children

would be likewise barred. Neither should

it be taken as implying that after a

parent has failed in an attack on a

termination decree, the children may

maintaih a separate suit attacking that

decree.

Affirmed.

CLARENCE A GUITTARD

CHIEF JUSTICE

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PUBLISH

Justice Ted M. Akin dissenting.

A20

COURT OF APPEALS

FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT DALLAS

NO. 20558

WILLIAM HENRY JOINER, JR.

Appellant

VS.

MRS. KAREN H. VASQUEZ,

Appellee

FROM A DISTRICT COURT

OF DALLAS COUNTY, TEXAS

BEFORE THE COURT EN BANC

OPINION BY CHIEF JUSTICE GUITTARD

MARCH 17, 1982

ON MOTION FOR REHEARING

In this motion for rehearing Joiner

insists that the rule that a judgment

valid on its face is not void and subject

A21

to collateral attack for lack of service

does not apply to judgments against

nonresidents because of due process

requirements. He cites Hodges,

"Collateral Attack on Judgments," 41 TEX.

L. REV. 499, 505-518 (1963). Professor

Hodges points out that due process may

require an exception to this rule in the

case of nonresidents, but he recognizes

that a collateral attack may be barred by

the res judicata effect of an intervening

judgment. Id. at 526.

Under such an exception, the

juvenile court may have erred in the first

bill of review, but that error cannot

avail in this third bill of review. The

termination decree did not reveal on its

face any lack of personal jurisdiction.

Such as lack was a matter of fact and

could only be established by evidence.

Joiner undertook to make that proof in his

first bill of review, but the court

A22

declined to give him relief on that

ground, and he failed to appeal. Although

the termination decree may have been void

for lack of jurisdiction over his person,

the judgment in the first bill of review

was not void, since he appeared and

invoked the court's jurisdiction to

determine whether it had jurisdiction of

the termination action. The first bill of

review judgment, though possibly

erroneous, was valid in the jurisdictional

sense, and Joiner's remedy was to appeal.

Instead, he brought another bill of review

on the same grounds, and, when relief was

again denied, he brought a third, although

he has never made any proper attack on the

judgment in the first bill of review. If

unsuccessful again, he may atteme a

fourth, and so on, contending each time,

as he does here, that no binding judgment

can be rendered until he is finally heard

on the merits of the original termination

A23

action.

None of the authorities cited tend,

even remotely, to support such a

contention. The issue of service of

process, like any other issue of fact, may

be settled by a judgment in a contested

proceeding under the principle stated in

RESTATEMENT OF JUDGMENTS Section 9 (1941)

that a party is bound by an adjudication

of the court's jurisdiction in a contested

proceeding. The application of this

principle to nonresidents is illustrated

by authorities holding that Texas courts

are bound by determinations of personal

jurisdiction by foreign courts in cases

where Texas residents have appeared in the

foreign court and contested jurisdiction.

Moody v. First National Bank of Dona Ana

County, 530 S.W2d 879, 881-82 (Tex. Civ.

App. - Houston [lst Dist.] 1975, writ

ref'd n.r.e), following Dunfee v. Duke,

375 U.S. 106 (1963). The same rule has

A24

been applied to a jurisdictional

determination by a foreign court in

proceedings concerning the support and

custody of children. Kellogg v. Kellogg,

559 S.W.2d 126, 128 (Tex. Civ. App. -

Texarkana 1977, no writ); Layton v.

Layton, 538 S.W.2d 642, 647-48 (Tex. Civ.

App. - San Antonio 1976, writ ref'd

n.r.e.). If a Texas court is bound by

such a jurisdictional determination of a

foreign court, then, on the same principle

a Texas court is bound by its own

determination of jurisdiction in an

earlier proceeding in which the

nonresident appeared and contested the

jurisdiction of the Texas court.

We do not hold that a nonresident

defendant is bound by the recitals of

service in a judgment and cannot attack it

by extrinsic evidence showing lack of

proper service. We do hold that having

made an attack on that ground and failed,

A26

he may not make another.

Joiner seeks to avoid the bar of res

judicata on the ground that the present

proceeding is a collateral as well as a

direct attack on the termination decree.

He gains nothing by labeling the

proceeding a collateral attack. Res

judicata applies whether the earlier

attack was direct or coliateral. (See

McGhee v. Romatka, 92 Tex. 38, 45 S.W.

552, 554 (Tex. Crim. App. 1898)

(collateral attack following direct

attack); Cheney v. Norton, 181 S.W.2d 835,

836 (Tex. Civ. App. - Dallas 1944, writ

ref'd) (collateral attack following bill

of review treated as collateral attack for

want of necessary parties); "56" Petroleum

Corp. v. Rodden, 98 S.W.2d 269, 270 (Tex.

Civ. App. - Texarkana 1936, no writ)

(direct attack following collateral

attack). In McGhee v. Romatka, supra, the

supreme court held that a collateral

A26

attack in a subsequent suit for title to

land was barred by the denial in the

former suit of a motion for new trial

alleging the same ground subsequently

alleged. The court commented that if the

earlier decision was erroneous, the losing

party should have had it set aside.

We know of no ground for avoiding a

judgment that may be urged by collateral

attack but not by direct attack. When the

ground for avoiding the earlier judgment

is lack of service of process, the party

seeking relief need not show, as in the

usual bill of review, that he was

prevented from making his defense to the

original suit by fraud, accident, or

wrongful act of the opposing party. Texas

Industries, Inc. v. Sanchez, 525 S.W.2d

870, 871 (Tex. 1975). We need not Swe

determine whether Joiner was required in

the first bill of review to prove a

meritorious defense to the termination

suit because even if the court erred in

requiring him to do so, he is bound by the

judgment denying the bill of review, since

he made no effort to set that judgment

aside by appeal. McGhee v. Romatka,

supra. Consequently, we hold that the

judgment in the first bill of review is a

conclusive bar to the present suit.

We are not justified in disregarding

these established principles on the ground

that errors in the original termination

suit and in the first bill of review will

have an adverse effect on the welfare of

the children. If final judgments are

subject to review in subsequent

proceedings on issues relating to the

merits, but not specifically decided in

the original suit, then lititation would

never end until every new theory of fact

and law advanced by resourceful counsel or

his successor is fully explored and

expressly determined. Although

A28

occasionally ideal justice may be more

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tee

ation case, the

mth

judgments should

ohenh! 7

ennunil

ated by

(

h- Ww

uw)

visitation order predicated on this

hearing was abor

the ground of re

least, the appea

guardian ad lite

this cause reman

reflected by the

appalling miscarriage of

-~_->

occurred and w

-—

+ i)

the trial judge on

hould be sustained and

Tne facts as

cord indicate that an

justice has

e perpetuated unless an

evidentiary hearing is had with respect to

the best interest of the children anda

Consequently, I am compelled to dissent.

This action commenced on February

0, 1976, when Mrs. Vasquez, then Mrs.

. 1 }

JOiner’ s+

7 . ~ * £

+ S +

- JOLner was tne rirst of Mrs.

Vaennea 1 € yiI0¢} na

Vasquez rour lUSdDAaNAS.

4 ~ ws ~ ‘7 -

parental rigntcs. ES~« vasquez anda Joiner

74 r -| rc . — “\ 7-7 rt -

ere divorced in JKLANO 22m iF L inat

alae + awardad riictnAyw nF thea @wninictc tue

court awalacd -uUo -UUy age ~ Ke UU LO o> LW

1A + Me o er a

cniiaren to Mr VASGUeCEZ, w1itn Joiner

e child support.

In her original petition, Mrs. Vasquez

sought termination on the ground that

pay court-ordered child

Support. An attempt was made to serve

citation upon Joiner in Oklahoma, where he

locate Joiner but was unable so to do. A

the conclusion of the testimony, the trial

udge stated that because Joiner had

LJ.

physical custody and was support!

not terminate

btu

son, the court woul

Joiner's parental rights on the ground of

nonsupport. However, no order was entered

reflecting this decision. On June 2,

1976, Mrs. Vasquez amended her petition to

allege that Joiner had endangered the

physical and emotional well-being of the

male child. No attempt was made to serve

Joiner with this amended petition, nor was

—iitw =

Termination on June 3, 1976, which found

that (1) the court had jurisdiction over

A36

the parties and subject matter and that no

other court had continuing jurisdiction;

(2) Joiner was guilty of nonsupport as to

both children; (3) Joiner had placed "the

child” (inferably the male child) in

dangerous conditions; (4) termination was

in the children's best interests; and (5)

Mrs. Vasquez should be appointed as the

children's managing conservator.

, the trial judge rendered her

Original petition as required by TEX. R.

CIV. P. 109, without preparing a statement

hth

of evidence as required by TEX. R. CIV. P.

244 and 812, without any attempt to serve

Joiner with notice of Mrs. Vasquez' trial

amendment, without any findings as to the

court's ground for asserting jurisdiction

over Joiner, without any pleadings to

to ser

—

ing

attemp

pursuan

A38

Joiner to establish that he had a

existed. Although Judge Penfold stated

that this was the worst record of any

termination case he had ever heard & that

Mrs. Vasquez had perpetrated a fraud on

the court, he incorrectly believed that he

was precluded from granting relief because

Joiner had not established a meritorious

defense with respect to Mrs. Vasquez'

amended petition in the first action.

Joiner's failure to appeal this order is

the grounds upon which the majority

)

invokes the doctrine of res judicata to

preclude this matter. Thus, this tragedy

c¢ Cc ] re

for these children ha

° te r * > , =

been perpetuated.

the denial of

‘er

ve)

ue)

ey)

nae"

his motion, but instead, under the

apparent theory that the trial court had

continuing jurisdiction, filed a second

bill of review five days after the first

bill of review was denied. On March 7,

1978, t trial court denied the second

bill of review without a hearing based

upon the res judicata effect of the first

this order.

Subsequent to the first two

petitions designated as bills of review,

Mrs. Vasquez entered into a contract with

certain sums of money in exchange for

permitting him regular weekend possession

b 4

(

)

ro ]

(Tt

Vasquez would consent to Joiner's adoption

s children. Pursuant to this

contract, visitation was implemented by

Joiner seeing the children regularly until

A40

Mrs. Vasquez again changed her mind and

severed contact between Joiner and his

children before she had permitted an

3 This information was

attached to a motion by

Joiner to supplement the

transcript, which motion was

jenied on September 3, 1980,

by a panel of this court

including the author of

the majority opinion but not

the dissenter on the ground

that the information was

immaterial to a resolution

of this case).

, JOiner's parents

led a petition in the old termination

Suit, seeking grandparent visitation

rights with their grandchildren and, on

October 29, 1979, the trial judge

Signed an agreed temporary order4

4 This order was agreed to by

. Vasquez and Joiner, thus

tending to negate her original

contention that Joiner piaced

Mrs

~ .

his son in “dangerous cir-

cumstances." Indeed, no

evidence has ever been

presented to any judge

Supporting this allegation.

5 ye anti: Ty £m

2 Apparently, Judge Penfold

believed he had continuing

311 yr 3 : + 3 ££ #1) _ i —

jurisdiction of the parent

nye ; ws

child relationship.

An Pok = Q and QRn rn =

On February 8 and 27, 1980, the trial

judge conducted a hearing to determine

at the hearing that it would be in the

best interests of the children for

Joiner to have a permanent relationsnip

with his children, the trial judge

refused to extend the temporary order

A42

A43

—~

«I

sal

doctrine of res judicata to bar further

litigation unless compelling public policy

considerations would be substantially

offended by the new action before it is

precluded by res judicata. Westinghouse

Credit Corp. v. Knownslar, 496 S.W.2d 531,

532 (Tex. 1973). Here no compelling

policy considerations are offended by

reversing this denial of the bill of

review and by permitting a determination

on the merits of what is in the best

interest of the children. To the

contrary, the majority, as well as the

trial court, uses the doctrine of res

judicata to preclude a consideration of

the best interest of the children, which

in my view is untenable.

In Kownslar, the supreme court

stated that, in determining whether, as a

matter of policy, res judicata should

apply to bar a second action, a court must

look first to whether there is a Texas

A46

case directly in point, and if not,

whether some substantial policy

consideration would be offended. Id. at

532. Here, no Texas case is directly in

point and neither is any substantial

policy consideration offended. Indeed,

the contrary is true. In the Interest of

G.M., 596 S.W.2d 846, 847 (Tex. 1980), the

supreme court, in holding that a clear and

convincing proof standard was required in

termination cases, noted that "termination

is a drastic remedy and is of such weight

and gravity" that due process required a

burden of proof greater than a

preponderence of the evidence in

involuntary termination cases. In light

of the supreme court's strong expression

with respect to the proof required in an

involuntary termination case, I cannot

believe that the supreme court would

endorse application of the doctrine of res

judicata to preclude a full hearing to

A47

determine the best interest of children in

a termination case, especially in a case

such as this where no evidence to support

he termination decree has ever been

uced.

Neither does the supreme court

decision on Ogletree v. Crates, 363 S.W.2d

431 (Tex. 1963), relied upon by the

majority, support their decision.

Ogletree concerned custody of children

rather than termination of parental

court is subject to further review by the

trial court at a later date based upon

changed conditions as to the children. In

a custody case, if a mistake is made with

respect to the best interest of children,

the trial court has continuing

A48

jurisdiction to rectify that mistake if

the circumstances of the children so

justify. On the contrary, ina

termination case, such as here, the

uy.

udgment is final for eternity, even

though the children may suffer in the sole

custody of their mother, in addition to

being deprived of a relationship with

their father. Indeed, if her

circumstances continue as shown here, the

children may need the intervention of

their father, which would be precluded by

the majority's decision. See Durham v.

Barrow, 600 S.W.2d 756 (Tex. 1980).

Consequently, Ogletree is not precedent to

support the conclusion of the majority,

which if left to stand, precludes forever

the relationship between a father and his

children, which a court appointed expert

concluded was not in the children's best

interest. Indeed, Ogletree is inapposite

to the majority's holding because that

A49

court considered the best interest of the

children in determining, as a matter of

policy, to utilize res judicata to

preclude further custody litigation at

chat time.

Moreover, we have held inc vc

534 S.W.2d 359 (Tex. Civ. App. - Dallas

1976, no writ) that the best interest of

children is the primary concern of the

rules restricting the granting of a new

trial should not be strictly adhered to by

the trial court where the best interest of

children is concerned.

rationale of C_ v. C__ should apply here

and we should hold that the best interest

of children should not be precluded by the

policy behind finality of judgments,

especially in a termination suit such as

here.

Furthermore, the majority refuses to

consider the merits of the minor

k on

attac

Guardian ad

d did not

roceedings wefore

ons in

- 4

on appeal.

is appeal

1 th

S On

ion

ent

Cane

)

e))

seeking a new tria.

interest of the children can be

: determined, which should be the primary

concern of this court, as well as of

; } rm) law v117 c . sr + ra

trial court. The law requires a court to

o> |

—

)

bal

; .

in a terminataon cas and a gquardia ad

7 . 5 ~ - 3 a ~ al ~ ~ hr

litem is appointed to nsure tnat

interests are in fact protected.

considering the guardian ad litem's a i

in behalf of the ch ldr >a P

although presented to the trial id y

Joiner, the guardian did not adopt

; = ' ljasadir ‘ ho _ . - +

Joiner's pleadings in tne trial court.

With this I cannot agree because tne

‘a

ue |

guardian ad litem

protecting the children’

”

a |

> 4

in the trial court and in this court. The

majority is again using a technical

procedural rule, of doubtful application

in this termination suit, to preclude a

— mare we ee

a ee er nL eee eee

held up to ridicule by laymen.

ey)

ue)

| ome

ow)

errors replete in this case, the

r"Y

07)

ue)

majority's observation, wit

—

b 4

bay

QO.

a |

Instead, the majority's rationale is but

pat

c(t

1h)

ae |

”

. ‘ 5 on — ete

. The majority places great empnasis

1 \ . : A » ° 10764

™" wee Se

y on whether the termination decree 1n 19/6

original decree is void for lack of

ned

uy «ed Q r) v anit

fe) 2) 4 ~ a f . ku rial

> = > ) U - 4 - eo

r4 v ‘ } 48) t U S Cc C ~ fx) O My Le)

a) W) > ] & ~ ‘ v4 18) l v Ww) = G4 re) 4

4 | S ) Ww 4 ) bu hu @ O ~ O

Q q) rs > vw DO v Mm @ ” >

s S) > bu Ae) S 1 Cc r4 " 4 ) i @| oa v “4 y

4 v 1 ) ) er 2) 4 Se O v Oo e) 4)

J C ? O, l t C c 4 e = Ku > i)

op) ~ S =) 4 QO, . y e) ‘ i U ~ U) C Cc

My > U O O e Le w" \ 4s) @| ..) a > 4) ord re)

4 — oon Cc ry 0 3 ; 2 w) w] e TS o~t S

G4 _ U wy) ry +) O o 0) U q) Q @ ) O

ie) : W) Cc 4) ~ Ma 7 W Q = rt oO ye ro | 2)

w |) ; oO @, 3 Mm wo Cc J’

~ go O S&S cs , ¢ o ) \ G ha se CG oO ® Cc ~

hu ) om] ; oO Cc | i é 1 4 4 . — - “4 0] fe) J)

a) J Q, rt c? 4 '@) z ) ee) r m re) Q Q, o4

ae | | qQ) “4 @) hy =z ~ ed ) 1 c @) | Ww rj ry TI

a4 re) Le) v D ~ 3 > U ‘ Q re ha & Lu rb) Ww) 4

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re ut @ ro O ) hu { 4 ha ‘ ) CG _ oO" “A AY

w od l v ) e . ‘a r D 4 ") ~ v Cc 0) >»

ha a ) Ae} U © wo . oO S W") ad ~y Ce 3 wo

wv Ww . + ¢ mM ; @ ) mM : = 6. wo rs) J 4)

> ot oO ) f v b4 w ~ hy : 4 e Oo uv =a) n 7 M4

oO ed io @ Q mo ‘ ) ) ) ‘ ~ U J ra po oO ©

Q a Qy c se. O, C J) J «<C . Mm Oy

G rial hu @) e ia f ) 4 ha Ww C “J om E

Oo 4) wo 0) C ) ku ) a Le) ) Y @ c4 rea) O Cc ” - 4

“4 ” 09) o O Oo Oo rt ) 4 Ou ha w wo rea CG O 4 U4

) eh) rw rs) 4 Le 4 : ‘er ) U , Lu @ Q hu a 4) 4 Ww) Cc

@) s th) ) hy © ‘ J 7. q@ 4 s) Cc W”) wo

a4 > = 08) 10) .) @| :@. ] hu OQ, e 7 rs) . «Cc ral @) Q) é)

UO co = ” G Qu ; v = Q J 4 O _ > c ont 0)

0] ha Vv 3 4 ef 4 oc ue) ry s Cc _ fx] “4 oo é) v

4 hal 4d oO f eh) ' Cc CG wT wv eS H m te nn = a

+ wv > é) a rw) W w i) “4 u Oo 0) Le) oO by w re) a

| r-4 rb] @ 8) .) wo f » oO a Ly a cs ©) . D — e O

m {) ba Q J v e wo l > ro O Q S = =| rw) oO ~ OU

vans V.

also

368 S.W.2d 783,

"may be

ent

judgm

void

dism'd)

court at any

“7

collaterally a

uw)

ue) on w;w . m

a 7S) Oo N O G4 > Cc

oO 12) rs) ° c . Oo > oa qu

> v r4 ~ = = O O w al =} oO

a] nr oe faa) . ~ . C @ r4 - ku a) ku

“d wo Q fu N WY) fo@) WY Cc ed W) O hu a hu Cc i) >

3 foe) oa) ~ 4 oO ) wa ans @ ££ 4) | 6) 6)

ct 4J Ww . ~ OV wn hu Qu ce oO se 4J cD) ¢ =~

0) x 179) hu ™N rd N oO 0) @) f oO en e) m o > © on 2) O

Qy rf) od ry ° Cc a ( 4 m ”) S r e O My @) Q,

Qy oO a ~ ) . rt _ wT 18} on ow re) To >

aw v” e) 7) e Cc hu yn) oO Q a | a) a G4 wy ce) hu = U a

Q ted WY) wo (@) 4 rd q 3 rm hy oe O a) rab) Ww wn J | x

My oe | oN ‘<= > ra ro | | OF hu “4 @) WY Q (@) ra 4

00 O 9) S oO My a can QO wi a 79) 4 rd - c )

4J re) co 7 mM . ate hy a Q oO wo 4) w a] . Cc QO, ‘\

va S ~) re) a j ( = ¢ > ) U o 1

wo 0) O Cc . bu . = 4 4 ee) ue on oO oS) e 'é) qa S

My “4 4 ~ > > «1, 7 c 4 oO ” re) rd ‘ O

a i a gud ! ‘en S + 4@) 10) My 0) Ww H 4)

E 0) oO Q) va) hy ~ | @ O r4 uD) ~ hy qo - wn

| Qy om fF roa) a . Q m N en) ct “4 @) q@ fia] Ww - Ww )

4J Qy “4 4 4 @) Qu =, . q) T & 4 ae 10) 0) 7S) 8) Cc VY Cc fe @)

ia Ee 4 . G Oy om QO, ( ( { rd ro 7) 4 e ri) wn re) s) a wn

wo My x wo et Quy 1 Uv) wy 4 hy oy ri] “4 c+) “4 ond ra] = «t

4J @ DN w t O eC ra 4J a a) & W) \u w ra ry

en) ba re) c ZI & : rt) 1 ( O ve @ hy 4 re) er 3 a wm

| ie} O > rd . a) J et ria} f Ww) ~ hu r+ ey

ra wo N © et mw > eC ~ q) Oy hy 18) . c+) 6) .) an)

“4 @) . 4J wo C) 4 ) am J Q © Q@ Q ria] .) c ia]

5 - 4 « cd ~ qd C) ' t) Q) ) ha C O B= us

rad © ea . @ y uw )) 1 on) { y) ig fy) 3) J (

O ow aa - ed ne VY) . ( 0) >, @) r -) a) - |

= @ J () e We) qa) nee fal { G 4 Q | Ww) a) C c oy

aA J | w @) OV fa q) | ul @| hy a) | tA oO .)

() q) J - pe | 7 t4 ~ ‘ Li 1 q) TS hu ~ ro | 4 4

- a) f ) 4 ry ce rd re rc u @ W” v) a) =

@ ua Oo rel fxs oo ) i) ( ) @) ) S rc ab) i) 4 w

f ha Te) i S 4 ‘ rd ) 2) od) 04) O a 7s) My U C

A Q@ - (@) . N | hy om” hy 4 a} Su we So SS wo a @ rd

) OQ, a 4) > ao ed = — L x 7] Ou = YW) 1) ©) fry i @) “4

considering the best interest of children

in a termination case. Accordingly, I am

issent in this tragedy o

(@)

40)

i 7)

(Tt

udicial errors. This case cries out £

ustice for these children to be

termination of parental rights by the

JInited States Supreme Court and the Texas

Supreme Court. Stanley v. Illinois 405

U.S. 645, 92 S.Ct. 1208, 31 L.Ed. 24 553i

(1972); Wiley v. Spratlan, 543 S.W.2d 349

JUSTICE

Publish

Concurring in Justice Akin's opinion:

Justice P. C. Guillot

COURT OF APPEALS

FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS

AT DALLAS

NO. 20558

WILLIAM HENRY JOINER, JR.

Appellant

Vs.

MRS. KAREN H. VASQUEZ,

Appellee

FROM A DISTRICT COURT

OF DALLAS COUNTY, TEXAS

BEFORE THE COURT EN BANC

DISSENTING OPINION BY JUSTICE GUILLOT

MARCH 17, 1982

While I agree with the result

reached in Justice Akin's dissent, I

believe the compelling reasons for

reversing and remanding this case are

constitutional.

A60

cognizant of the constitutional right of

family integrity. The State's severance

of a parent-child relationship must

receive strict judicial scrutiny. Roe v.

Conn, 417 F. Supp. 769 (M.D. Ala. 1976).

While many of the decisions dealing

with the constitutional issues raised in

parent-child proceedings deal with the

rights of parents, nevertheless, the

children as well. In Stanley v. Illinois,

constitutional right to a hearing before

true: children nave a right to a hearing

before one of their parents is taken from

them. It is undisputed in this case that

no such hearing took place.

The rights of juveniles have been

A61

protected in delinquency hearings. In re

Gault, 387 U.S. 1 (1967). Gault held that

a minor is entitled to, among other

(a) right to notice;

(b) right to counsel;

cross-examination; and

(d) right to a transcript of the

proceedings.

I would apply these rights to minors who

are subject to losing either of their

parents. Testing the record vis-a-vis

Gault with respect to notice, it reflects

no notice of the amended pleadings was

given to the children; with respect to

ight to counsel, there is no evidence

the children's behalf between May 18,

1976, and the final motion for rehearing

some four years later;! with respect to

lat the first hearing the

court refused to terminate.

A62

ight to confrontation and to a

transcript of the proceedings, the record

reflects no hearing was ever had on the

long been the law that if an amended

pleading asserts a new cause of action,

service of process is necessary. Morrison

vy. Walker, 22 Tx. 18 (1858); Sanchez v.

Texas Industries, Inc., 485 S.W. 2d 385

(Tex. Civ. App. - Waco 1972, writ ref.

n.r.e.). There is no doubt that the real

parties in interest in this case are the

children. See C. V. C., 534 S.W.2d 359

(Tex. Civ. App. - Dallas 1976, no writ).

t necessarily follows that the amended

pleadings should have been served on them.

Moreover, papers should have been

served on the children because they are

persons needed for just adjudication.

A63

See Rule 39 Tex. R. Civ. P. 39.

In addition to being recognized in

the federal court system, the

constitutional rights of children are

recognized in the State system also. See

Ricketts v. Ricketts, 576 S.W.2d 932 (Ark.

1979, en banc). I would hold that the

children in the present case have a

hearing at which they may adduce evidence,

examine witnesses, and conduct the trial

in such a manner as to assist the trier of

fact to determine what is in their best

interest.

PATRICK C. GUILLOT

JUSTICE

PUBLISH

Concurring in Justice Guillot's opinion:

Justices fT. M. Akin and B. J. Stephens

A64

JUDGMENT OF THE COURT OF APPEALS

OF TEXAS FOR THE FIFTH SUPREME

JUDICIAL DISTRICT

DECEMBER 11, 1981

NO. 20558

WILLIAM HENRY JOINER, JR.

OF DALLAS COUNTY, TEXAS

FRIDAY, DECEMBER 11, 1981

BEFORE CHIEF JUSTICE GUITTARD AND

JUSTICES AKIN AND CARVER

OPINION BY CHIEF JUSTICE GUITTARD

This cause came on to be heard on

the transcript of the record, and the same

being inspected, because it is the opinion

of the Court that there was no error in

the judgment, it is therefore considered,

A65

Lt |

2 @)

A67

Ww)

‘o)

WY)

ery

™

«I

ie.) uw @

CG 4 ca

U ) 4 > we) ae

‘ Fd C) ert wm hu

~ oO UY 4 vi o oO rw

1] <I ° hu D a Qa)

— < QO 4) S Ma hy >

ta t ~ 0) 1 O a) oO *

u > f4 ~m a hu ha 4 @)

~ tx] QO hu wi ~ m

j cat La L) ‘@) Ww e

t a (x) ¥ - ) an ed

a a > No s ud U4 w )

Zz. @ C4 ' a OC U4 @) ot > .)

me: y S oO 1 Cc Q j

C ) Y es - uw er) — wee: oO i) 4) @ U)

4 «i ! ( . 2 4 4 om) ha

wo © Cf OM MOM = mm 4) 08) 4)

> a oe ae | J | yy. ov 4+ + - )

[ ; nizw a c we c

m i an , mh (x) e -- hu w wT

f ¥ ( 1} ry aig. Ww) oO hy oe S

y a tw VU - Qa a) wo (

fy ©) Oy ym “. w \ | W)

Pa 1 > ° er s 1) = 4 ~ i)

4 : f) | . S © i) q \

I ] 5) WW) cA ) 4 eo Q a)

‘ i ] Y eA 4 ) oO Q

. , Lt > i vt () a ‘@)

. . ri ‘ C) © r

! | 4 ed al ed

“ } | oo | e~4 4) a)

Y i ) Ou , j re) t)

hu (dy a! t {

i 4

oe os U

hu a) rt ;

oO a) au t

Wd 4. Y)

‘ate

wis

termination of the parent-child

relationship between Petitioner and his

minor children, Rebecca Leigh Joiner and

William Bartley Joiner. Said petition

was filed in the Juvenile Court of Dallas

Couhty, Texas, and was entitled and

mumbered "In the Interest of Rebecca

Leigh Joiner, William Bartley Joiner

Children, No. 76-165-JUV.

Citation in the above-described

termination suit was not effectuated by

personal service. Petitioner had no

Knowledge of the suit nor of hearing on

May 18, 1976. Hence, Petitioner made no

appearance in the termination proceeding,

and no answer to the petition seeking

termination was filed on Petitioner's

behalf.

IV.

The original petition filed in

connection with the termination of the

A7&

parent-child relationship between

Petitioner and hi hildren alleged as

10)

is)

re |

grounds for termination that Petitioner

had failed to support the children and

refused to base its termination decree as

to the minor child William Bartley Joiner

on the ground of nonsupport. Thereafter,

Respondent filed a trial amendmen

¢?

1?)

June 2, 1976, amending the grounds for

termination as to Petitioner's son and

alleging that the child had been placed

in conditions dangerous to his physical

and emotional well-being. A Decree of

Termination was granted on June 3, 1976,

terminating Petitioner's parental rights

to both children on the ground of

nonsupport, and further noted that

Petitioner was being terminated as to his

son on the additional ground of having

A75

placed the child in conditions dangerous

to his physical and emotional well-being,

a copy of which decree is attached

hereto, marked Exhibit "A", and made a

part hereof by reference for all

purposes.

Petitioner brought a Motion for Bill

of Review on February 24, 1977, which was

denied by judgment of September 22, 1977.

This first Motion for Bill of Review was,

pursuant to Rule 329, Texas Rules of

Civil Procedure, Petitioner's motion for

new trial, brought within two years' from

the date of entry of the Decree of

Termination, a principal well-established

in Texas case law.

Petitioner brought a second Motion

for Bill of Review, which was denied by

Order of March 7, 1978, on the basis of

Respondent's Plea in Bar and Motion to

Dismiss which, erroneously, relied on the

A76

defense of res judicata. Dismissal of

clearly judicial error.

Petitioner has never been afforded

Petitioner hearing on this First Amended

Petition for Bill of Review.

Petitioner would further show that

pplicable to jurisdictional questions

and that this Petition can not be

dismissed on those grounds.

The Decree of Termination rendered

in the above-described termination suit

should be declared void fo the reason

that this Court was without jurisdiction

to render a judgment against the person

of Petitioner, for the following

reasons:

A. An attempt was allegedly made to

A77

serve

“4

tna

io)

rt)

the return shall show the diligen

the cause of failure to execute it, and

A € AA 12 £ on

where the defendant is to be found, if he

an DA + t 177

can ascertain." Petitioner would show

file in cause number 76-165-JUV merely

states: "William Henry Joiner, Jr.

unavailable to contact", a copy of which

return is attached hereto as Exhibit "B",

and incorporated herein for all purposes.

requirements of Rule 107, because of its

+ athe - chanw +) Aili hy }

failure to show the diligence used by the

officer to execute the citation.

Petitioner would show the Court that the

Petitioner would further show the

Court that, in order to sustain a

judgment upon substituted service, there

must be affirmative proof in the record

A79

”

ni)

that the defendan

manner reguired by law. No presumption

should be indul

cy?

(ib

»)

Petitioner, and that the Decree of

Termination is void and should be so

declared. Petitioner requests that the

Court declare the Decree of Termination

entered June 3, 1976, void for want of

jurisdiction.

B. The Decree of Termination should

be declared void because the attorney ad

litem appointed by the Court to represent

Petitioner did not file any answer on

behalf of Petitioner. Because no answer

was filed, the Decree of Termination is a

default judgment. Rule 812, Texas Rules

of Civil Procedure specifically prohibits

entry of default judgments in a case

where service has been had by

A80

: P : ‘

a af ataatvian aheanié

Ce he Decree of Terminatl Ss iid

. . .

Se waid bt on ne -naeamand af

. be declared void because no Statement o

+ >) "reo y- Filan _ ero +*+armnm — a rn

the Evidence was [11eda 1 ~-ne erminatl

o sa ad PIs «ee 1 + r A oa Mes l aA * ,

Te¥as Rules of Civil Procedure. Rule 244

:A ‘ as worry euck eas:

provides, 1n part, ln every sucn case a

11)

a *

rev)

i @)

a |

(Tt

‘2

ey)

'@)

98)

(ft

be declared void because Respon

pe |

—

‘

“vn

ve)

”

—-

(?t

( 7

‘

rt)

method possible to apprise Petitioner of

the termination proceedings. Petitioner

would show the Court that Respondent

, admitted that she was aware of the

: residences and whereabouts of

Petitioner's parents and Petitioner's

sister, and submits that citation by

tne

peen

hav

r—

A82

Petitioner would show that a person

(@)

it?)

pe |

ve)

being cited in a judicial pr

intended to deprive such person of all

04)

c(t

‘

rp 4

(wD

, :

7 nAaNneKe 7+ a+ ++ , c nd r

respondents in other civil sui i

— » at i

eee oe ,f th pays

L1@xXas, a iB wet. OF 4AaeoVZ oP7e « € s=AQaAS

«<

rei

waiving the foregoing, the Decree of

Termination in the above-described case

should be set aside for the reason that

Petitioner's failure to appear and answer

was due only to the fact that he received

no notice of the suit and not any

negligence on his part. Petitioner

submits that where there is a duty to act

there cannot be negligence by inaction.

Rather, Petitioner would show the Court

that he was compelled to suffer the

Decree of Termination by circumstance

beyond his control, that he has not been

guilty of a lack of diligence in failing

to avail himself of any mean to obtain

relief therefrom, and that no other

remédy is available to him.

Petitioner herein had and has a good

and meritorious defense to the above-

described termination suit that was not

presented in the termination proceedings

only because Petitioner had no notice of

said proceedings and hence, made no

appearance therein. Petitioner submits,

by way of meritorious defense the

Following:

A. Petitioner did not fail to

support said children in accordance with

his ability during a period of one year

ending within six months of the date of

the filing of the Petition for

Termination, upon which grounds the

A84

non

ood

ngered

enda

land

tions w

—

condi

physical or emotional well-being.

.e)

the possession

in the

filed

A86

rn 3:

(7 ’ / ; : | . ~

D. The Court erred in failing to

meet its burden to inguire diligently

he&@ring, attached hereto as Exhibit "Cc"

} a a 7 } } . : 1 ‘,f

shows that the Court failed to make any

. NO answer or appearance was Mm

F. Petitioner had ineffective

, Ss .

assistance of counsel. Petitioner woul

1) He failed to file an answer fo

Ae]

pe |

ailed to detect the fatal

pe ©

error made in the attempt to effect

personal service on the Petitioner as a

nonresident;

(3) He failed to attempt to locate

AQ?

bau

nt)

Petitioner when he could easily have done

so by contacting Petitioner's parents or

Petitioner's sister.

(4) He failed to make any

examination of Respondent, at hearing, as

to Respondent's efforts to locate

) He failed to make examination of

Respondent, at hearing as to Respondent's

proof of the allegations made against

Petitioner in her Petition for

Termination;

(6) He failed to request the filing

of a Statement of Evidence prior to entry

of the Decree of

(7) He failed to object to entry of

the Decree of Termination terminating

Respondent as to William Bartley Joiner

on the grounds of failure to support,

when the Court had advised counsel that

the Court would not terminate on the

grounds of failure to support, when the

A88

Court had advised counsel that the Court

would not terminate on that ground;

(8) He failed to object to entry of

the Decree of Termination terminating

Respondent as to William Bartley Joiner

on*the grounds of placing the child in

conditions which endangered the child,

when no evidence supporting that

allegation was presented. Petitioner

would show the Court that court-appointed

attorneys serving as ad litem for a party

have a duty to perform as effectively as

in other cases, and that Petitioner's

court-appointed ettorney totally failed

to provide him with effective

representation.

G. The best interest of the

children must be the primary

consideration of the Court, and that the

best interest of the children the subject

of this suit is not served by an

affirmance of the termination of the

A89

parent-child relationship between

Petitioner and the children. Petitioner

submits that the Agreed Temporary Orders

entered by this Court on October 1, 1979,

in Cause No. 76-165-W are manifest

acknowledgment by this Court, by the

guardian ad litem for the minor children,

and by the parties thenselves that the

relationship between Petitioner and his

children should not be terminated,

because such termination is not in the

best interest of the children.

IX.

The fact that the attempt to serve

citation upon Petitioner as a nonresident

was not in compliance with the Texas

Rules of Civil Procedure obviates the

necessity of Petitioner's having to plead

and prove that Petitioner was prevented

from presenting his meritorious defenses

by fraud, accident, or wrongful act of

Respondent in order to obtain the bill of

A90

umstances

lol

lai

judic

d Petitioner

isle

nt that Respondent

elie

irther legal remedies

breach tl!

Res

money to

Petitioner prays that Respondent be ci

to answer and appear for hearing on this

Bill of Review.

Sats

er?

Petitioner prays tha

it)

Review be granted and tha

Termination be vacated and held for

naught.

(wD

a |

b 4

(@)

(Dp

rer)

’

of Respondent's petition tor

termination.

. . oa % 1 a . ion road

Petitioner prays that tne Court ft

that this Court was without jurisdicti

to enter its Decree of Termination, th

said Decree of Termination be vacated,

set aside and held for naught.

Petitioner prays the Court enter

order restoring Petitioner's parental

rights and obligations in and unto his

;

Phy

oo)

ond

ord

obertson

that a true and

was mailed

oregoing

attorney

March,

Yertso

for

Robertson

Davis,

Rob

day of

attorney

ouls

Mr .

A93

take

ndent, a

espo

NO. 80-7-W

IN THE INTEREST OF IN THE 304TH

REBECCA LEIGH

JOINER AND DISTRICT COURT

WILLIAM BARTLEY

JOINER, Children DALLAS

PLEA IN BAR AND

MOTION TO DISMISS

TO THE HONORABLE JUDGE OF SAID COURT:

Comes now KAREN STEPHENS VASQUEZ,

Respondent herein, and files this Plea in

Bar and Motion to Dismiss and in support

thereof would respectfully show the Court

as follows:

On February 24, 1977, Petitioner

filed his Motion for Bill of Review in

Cause No. 77-161-JUV in the Juvenile

Court of Dallas County, Texas, which

Court is now designated as the 304th

Judicial District Court of Dallas County,

Texas. On September 22, 1977, the Final

Judgment on Bill of Review in the afore-

said cause was signed by the Honorable

A94

Craig Penfold.

Il.

On September 27, 1977, Petitioner

filed a Motion for Bill of Review in

Cause No. 77-855-W, in the 304th Judicial

District Court of Dallas County, Texas.

On March 7, 1978, the Honorable Craig

Penfold signed an Order granting

Respondent's Plea in Bar and Motion to

Dismiss Petitioner's Motion for Bill of

Review.

zit.

The pleading filed herein which is

designated Petition for Bill of Review

involves the same parties, the same

issues and the same cause of action as

were involved in Cause No. 77-161-JUV and

Cause No. 77-855-W. Accordingly, the

Judgment in the former cause and the

Order in the latter cause are bars to

this action and Respondent relies on the

defense of res judicata.

A95

IV.

Further, Petitioner in this action

fails to plead or prove that he was

prevented from presenting a meritorious

defense by fraud, accident or wrongful

act of Respondent. Therefore, the

Petition for Bill of Review should be

diemissed for failing to contain the

allegations required for relief by bill

of review.

WHEREFORE, PREMISES CONSIDERED,

Respondent prays that, upon hearing

hereof, Petitioner's Petition for Bill of

Review be dismissed with prejudice and

Respondent prays for such other relief as

the Court may deem just.

Respectfully submitted,

/s/ Steven G. Condos

STEVEN G. CONDOS

Attorney for Respondent

Suite 750

8350 N. Central Expressway

Dallas, Texas 75206

(214) 361-4277

A96

NO. 80-7-W

IN THE INTEREST OF IN THE 304TH

REBECCA LEIGH

JOINER AND DISTRICT COURT

WILLIAM BARTLEY

JOINER, Children DALLAS

ORDER DENYING BILL OF REVIEW

On the 27th day of March, 1980, came

on to be heard Petitioner's Petition for

Bill of Review in the above-entitled and

numbered cause.

Petitioner, WILLIAM HENRY JOINER,

JR., appeared by attorney and announced

ready.

Respondent, KAREN H. VASQUEZ,

appeared by attorney and announced ready.

Also appearing was LOUIS DAVIS, JR.,

appointed by the Court as guardian ad

litem of the children the subject of this

suit.

The Court after listening to the

arguments of counsel finds that

Petitioner's Petition for Bill of Review

A97

should be denied as a matter of law, and

IT IS THEREFORE, ORDERED, ADJUDGED

AND DECREED that Petitioner's Petition

for Bill of Review be and the same is

hereby denied as a matter of law.

SIGNED THIS 14th day of April, A.D.,

1980.

/s/- Craig Penfold

JUDGE

A98

NO. 80-7-W

IN THE INTEREST OF IN THE 304TH

REBECCA LEIGH

JOINER AND DISTRICT COURT

WILLIAM BARTLEY

JOINER, Children DALLAS

MOTION FOR REHEARING

COMES NOW WILLIAM HENRY JOINER, JR.,

Petitioner in the above-styled and

numbered cause and files this his Motion

for Rehearing of his First Amended

Petition for Bill of Review and would

show the Court:

The Court rendered judgment

overruling Petitioner's First Amended

Petition for Bill of Review during the

pretrial hearing on said Petition.

Petitioner was not afforded the

opportunity to make a record for the

purposes of appeal or for presenting a

bill of exceptions. Petitioner requests

the Court grant a rehearing of his First

Amended Petition for Bill of Review.

II.

Petitioner was not prepared for a

full hearing at the time of the pretrial,

Petitioner's chief counsel was not

present at the pretrial hearing, and

Petitioner was not afforded the oppor-

tunity to present any witnesses or

testimony. Petitioner requests the Court

grant a rehearing of his First Amended

Petition for Bill of Review for these

reasons.

WHEREFORE, PREMISES CONSIDERED,

Petitioner prays the Court grant the

relief requested herein by granting a

rehearing of his First Amended Petition

for Bill of Review.

Respectfully submitted,

ROBERTSON & WILKINSON, INC.

By: /s/ Charles H. Robertson

Charles H. Robertson

3016 LTV Tower

Dallas, Texas 75201

214/748-9211

A100

NO. 80-7-W

IN THE INTEREST OF IN THE 304TH

REBECCA LEIGH

JOINER AND DISTRICT COURT

WILLIAM BARTLEY

JOINER, Children DALLAS

ORDER DENYING PETITIONER'S

MOTION FOR REHEARING

On May 13, 1980, came on to be

considered Petitioner's Motion for

Rehearing in the above-entitled and

numbered cause. The Court, being

satisfied that due notice of the filing

of such motion and of the hearing thereon

was given, and after considering the

pleadings and arguments of counsel, is of

the opinion that such motion should be

denied.

IT IS THEREFORE ORDERED that

Petitioner's Motion for Rehearing be and

it is hereby denied.

SIGNED this 14th day of May, 1980.

/s/_Craig Penfold

JUDGE PRESIDING

Al0l

EXCERPT FROM BRIEF FOR APPELLANT

(pp. 8-12, 17-20) IN THE COURT OF

APPEALS OF TEXAS FOR THE FIFTH SUPREME

JUDICIAL DISTRICT

POINT OF ERROR NUMBER ONE RESTATED

The trial court erred in granting

Mrs. Vasquez' Plea in Bar and Motion to

Dismiss because the termination decree was

void. (Germane to Tr. 55 and Supp. Tr. 3-

POINT OF ERROR NUMBER TWO RESTATED

The trial court erred in concluding

that Joiner is foreclosed from attacking

the termination decree by virtue of prior

proceedings in the trial court. (Germane

to Tr. 55, Supp. Tr. 3-5, and Supp. Tr.

46-48)

ARGUMENT AND AUTHORITIES

The issues involved in this

litigation relate to the substantive

question of what procedural requirements

are mandated by Texas and federal,

constitutional and statute law when

parental rights are terminated.

Inextricably intertwined with this

consideration is the question of when and

by what method may termination decrees,

which are rendered in disregard of legal

requirements, be set aside as void. This

necessitates a discussion of the subject

of direct and collateral attacks on domes-

tic judgments in the context of constitu-

tional principles.

Parental Rights of

Constitutional Dimension

The natural relationship between

natural parents and their children is one

of constitutional dimensions. In the

Interest of G.M. et al, Children, 596

S.W.2d 846 (Tex. 1980); Wiley v. Spratlan,

543 S.W.2d 349, 352 (Tex. 1976), citing

Wisconsin v. Yoder, 406 U.S. 205 (1972).

"The Court has frequently

emphasized the importance of

the family. The rights to con-

ceive and to raise one's children

A103

have been deemed ‘essential',

Meyer v. Nebraska, 262 U.S. 390,

399 (1923), ‘basic civil rights

of man,' Skinner v. Oklahoma, 316

U.S. 535, 541 (1942), and ‘[rJights

far more previous than property

rights,' May v. Anderson, 345

0.8. $26, 333 (i953). “St is

cardinal with us that the custody

care, and nuture of the child

resides first in the parents,

whose primary function and free-

dom includes the preparation for

obligations the state can

neither supply nor hinder.’

Prince v. Massachusetts, 321

U.S. 158, 166 (1944). The

integrity of the family unit has

found protection in the Due

Process Clause of the Four-

-teenth Amendment, Meyer v.

Nebraska, supra, .. . the

Equal Protection Clause of the

Fourteenth Amendment, .. . and

the Ninth Amendment, Griswold v.

Connecticut, 381 U.S. 479, 496

(1965)." Stanley v. Illinois,

405 U.S. 645 (1972); In the

Interest of G.M. et al, Child-

ren, supra at 846. (Parallel

Citations omitted. )

Due Process Requires Notice

As a consequence of the

constitutional character of the right to

rear one's children, notice and an

opportunity to be heard is required by the

due process clause of the Fourteenth

A104

Amendment. Stanley v. Illinois, supra; In

the Interest of K, 535 S.W.2d 168, 171-

175(Tex. 1976), cert. den. 429 U.S. 907

(1976) - dissent. In this connection, the

United States Supreme Court has stated the

following:

"Many controversies have raged

about the cryptic and abstract

words of the Due Process

Clause but there can be no

doubt that at a minimum they

require that deprivation of

life, liberty or property by

adjudication be preceded by

notice and opportunity for

hearing appropriate to the

nature of the case." Mullane

v. Central Hanover Tr. Co.,

399 U.S. 306, 313 (1950).

"An elementary and funda-

mental requirement of due

process in any proceeding

which is to be afforded

finality is notice reason-

ably calculated, under all

the circumstances, to apprise

interested parties of the

pendency of the action and

afford them an opportunity

to present their objections

- « « Questions frequently

arise as to the adequacy of

a particular form of notice

in a particular case...

But as to the basic require-

ment of notice there can be

A105

no doubt, where, as here,

the result of the judicial

proceeding was permanently

to deprive a legitimate

parent of all that parent-

hood implies.” Amstrong v.

Manzo, 380 U.S. 545, 550

(1965).

In the Amstrong case, "[n]Jo notice

was given Amstrong, although the Manzos

well knew his precise whereabouts.” Id at

547. Hence, it was not necessary for the

high court to consider the propriety of

citation by publication. As the following

paragraphs indicate, this is not an open

question.

Publication: Sham on Due Process

Citation by publication has been

termed a sham. Johnson, “Citation by

Publication: A Sham Upon Due Process,”

36 Tex. B.J. 205 (Mar. 1973). See also

Hemphill, C.J., in Edrington v.

Allbrooks. 21 Tex. 186, 189 (1858),

describing it as a "miserable substitute

for personal service". For many years it

has been characterized as a form of

A106

constructive service which was not

available when a personal judgment was

sought against a nonresident. See

McDonald, Texas Civil Practice, sec.

9.01.4 (1970); see also Sgitcovich v.

Sgitcovich, 159 Tex. 398, 241 S.W.2d 142,

146 (1951); McDonald v. Mabee, 243 U.S.

90 (1917). A few cases permitted the use

of publication in connection with the

exercise of jurisdiction in personam over

Texas domiciliaries. See Spinnler v.

Armstrong, 63 S.W.2d 1071 (Tex.Civ.App.--

El Paso 1933). While taking the

traditional view with respect to non-

residents that publication is not

available when a personal judgment is

sought,* Professor McDonald advises that

*In May v. Anderson, supra, the plurality

opinion of Justice Burton concludes that

a parent's right to custody is a personal

right "far more preeious to Appellant than

property rights” which cannot be affected

in the absence of personal jurisdiction.

A107

"publication alone is the least desirable

form of service. Where service more

calculated to impart actual notice is

practicable, service by publication

should be discountenanced by the court

and avoided by counsel." McDonald, supra

secs. 9.01.4, 9.21.2. The Texas Supreme

Court has articulated the applicable

principle in similar terms:

"To dispense with personal

service, the substitute that

is most likely to reach the

defendant is the least that

ought to be done is substan-

tial justice is to be done."

Sgitcovich v. Sgitcovich,

supra at 147.

The same philosophy is embodied in

the opinion of the San Antonio Court of

Civil Appeals (per Barrow, C.J.) in

Forney v. Jorrie, 511 S.W.2d 379, 384

(Tex.Civ.App.--San Antonio, 1974 ref.

n.r.@.). In Forney, a bill of review was

filed to set aside a judgment which

rested upon citation by publication. The

A108

evidence presented at trial reflecteu

that the plaintiffs in the original

action were in contact with the

complainant's parents and former attorney

at the time of the issuance of the

citation by publication. The court

stated that where substituted service

under Rule 106 could be used, publication

was not appropriate since when personal

service is not used, "the substitute

service that is most likely to reach the

defendant is the least that ought to be

required if substantial justice is to be

done."*

Regardless of whether the court

accepts the traditional Texas view that

citation by publication is not available

when a personal judgment is sought against

*McDonald also suggests the use of Rule

106. McDonald, supra at 9.21.2, n. 44.

A109

a nonresident, the case law indicates

clearly that publication is a deficient

form of service when alternatives are more

"reasonably calculated, under all the

circumstances" to actually impart notice

of the pendency of the action. It is

respectfully submitted the requirements of

both Texas law and the due process clause

of the United States Constitution require

that the judgment of termination be set

aside because Mrs. Vasquez did not use the

manner of substitute service "most

likely" (see Sgitcovich, supra) to serve

notice upon Mr. Joiner, i.e., that Mrs.

Vasquez used citation by publication when

she could have utilized substitute service

under Rule 106, Tex. R. Civ. P. 106. In

her affidavit for citation by publication

(Tr. 68), her attorney stated that at the

time he requested issuance of citation by

publication, he was in contact with Mr.

Joiner's parents and with several of his

A110

"old friends.” Yet, no attempt was made to

secure service through one of these

persons, or to advise them of the pending

action. Substitute service through such

persons would in all reasonable

probability have provided Joiner with

actual notice of the termination

proceedings. The method of service was a

"miserable" substitute, a "sham" which

resulted in what the trial judge has

referred to as "probably the worse record

of any termination case" (B.R., S.F. 59),

and a "fraud on the court." (B.R., S.F.

61). For the foregoing reasons the

termination decree should be set aside as

void.

The Trial Court Lacked Personal

Jurisdiction

It is undisputed that Mr. Joiner was

a nonresident of Texas at the time that

citation by publication was attempted

Alll

(T.R. 6-7). Apparently on the assumption

that personal jurisdiction was not

necessary, the trial court treated the

proceeding as an old-style in rem action.

There was neither allegation nor proof

that Joiner was amenable to process

issued by a Texas court.

Where a personal judgment is sought,

due process requires that the defendant

be given adequate notice of the suit and

that he be subject to the personal

jurisdiction of the court. World Wide

Volkswagen Corp. v. Woodson, 100 S. Ct.

559, 564 (1980). In May v. Anderson,

supra, Mr. Justice Burton's plurality

opinion concluded that a parent's right

to custody is a personal right which

cannot be severed without jurisdiction in

personam. In this connection, the United

States Supreme Court has declared that a

"judgment rendered in violation of due

process is void in the rendering State."

Al12

World Wide Volkswagen Corp. v. Woodson,

Supra at 564.

Neither the requirements of Texas

law with respect to securing jurisdiction

of nonresidents or the requirements

imposed by the Due Process Clause of the

Fourteenth Amendment were satisfied in

the proceeding in which Mr. Joiner's

parental rights were terminated.

Requirements of Texas Law

William H. Joiner, Jr. submits that

Mrs. Vasquez' failure to allege grounds

for the Texas court's assertion of

jurisdiction over him, a nonresident,

renders the judgment void for lack of in

personam jurisdiction. A record showing

of jurisdiction necessary to support a

default judgment upon substituted service

upon a nonresident must meet two major

requirements: 1) the pleadings must

allege facts which if proven would make

the defendant amenable to process under a

A113

long-arm statute; and 2) there must be

evidence in the record that the defendant

was, in fact, properly served as

prescribed by the statute. Whitney v. L

& L Realty Corp., supra at 95. In the

case at bar, the record clearly shows

that Mrs. Vasquez failed to allege the

existence of the conditions which, under

Tex. Rev. Civ. Stat. Ann., art. 2031b or

Sections 3.26 or 11.051 of the Texas

Family Code, are a prerequisite to the

acquisition of personal jurisdiction.

See McKanna v. Edgar, supra at 930;

Gathers v. Walpace Co., Inc., 544 S.W.2d

169, 169-170 (Tex. Civ. App.--Beaumont

1976, ref. n.r.e.); Day Bright Lighting

Div. v. Texas Metalsmith, Inc., 499

S.W.2d 336, 337 (Tex.Civ.App.--Dallas

1973, no writ); Security Savings & Loan

Ass'n v. Ward, 444 S.W.2d 366, 367

(Tex.Civ.App.--El Paso 1968, no writ).

Due Process Requirements

A114

In Shaffer v. Heitner, 433 U.S. 186

(1977), the United States Supreme Court

declared that "all assertions of state

court jurisdiction must be evaluated

according to the standards set forth in

International Shoe and its progeny, "i.e,

that the defendant must have "certain

minumum contacts with the forum such that

the maintenance of the suit does not

offend ‘traditional notions of fair play

and substantial justice.'" Shaffer v.

Heitner, 433 U.S. 186 (1977).

International Shoe Co. v. Washington, 326

U.S. 310, 316 (1945). In Mitchim v.

Mitchim, 518 S.W.2d 362, 366 (Tex. 1975),

the Texas Supreme Court said that in

personam jurisdiction may be acquired

over a nonresident defendant in a case of

the nature of this one by extraterri-

torial personal service of process only

if 1) the forum state has a statute

authorizing jurisdiction over the person

A115

by that process, and if 2) there have

been sufficient contacts between the

defendant and the forum relevant to the

cause of action to satisfy “traditional

notions of fair play and substantial

justice."

The mere “unilateral activity of

those who claim some relationship with a

nonresident defendant cannot satisfy the

requirement of contact with the forum

State." World Wide Volkswagen Corp. v.

Woodson, supra; Hanson v. Denckla, 357

U.S. 235, 253 (1958). Thus, in Kulko v.

Superior Court, 436 U.S. 84 (1978), it

was held that the mere act of sending a

child to another state to live with the

other parent "is not a commercial act and

connotes no intent nor expectancy of

receiving corresponding benefit in the

State that would make fair the assertion

of that State's judicial jurisdiction."

The Due Process Clause of the 14th

A116

Amendment, therefore, acts to limit the

power of a state court to render a valid

personal jurisdiction against a

nonresident defendant. World Wide

Volkswagen Corp. v. Woodson, supra.

Accord, U-Anchor Advertising, Inc. v.

Burt, 553°S.W.2d 760 (1977).

"Due process ‘does not con-

template that a state may make

a binding judgment in personam

against an individual or cor-

porate defendant with which the

state has no contacts, ties, or

relations.' International Shoe

Co. v. Washington, supra, at 319,

- - « Even if the defendant would

suffer minimal or no inconvenience

from being forced to litigate be-

fore the tribunals of another

State; even if the forum State

has a strong interest in apply-

ing its law to the controversy;

even if the forum State is the

most convenient location for

litigation, the Due Process Clause,

acting as an instrument of inter-

state federalism by imposing ter-

ritorial limitations on state

power, may sometimes act to divest

the State of its power to render

a_ valid judgment. Hanson v.

Denckla, supra, 357 U.S. at 251...

World Wide Volkswagen Corp. v. Woodson,

All7

supra at 565-66

(emphasis supplied).

In the case at bar no basis for the

exercise of jurisdiction over Mr. Joiner

is alleged (Tr.

6-7). In fact, his

contacts were insufficient to satisfy the

requirements of

Thus, under the

espoused in the

the judgment of

the trial court

Appellee's Plea

Dismiss.

the Due Process Clause.

constitutional premises

preceding authorities,

termination is void, and

erred in granting

in Bar and Motion to

A118

EXCERPT FROM APPELLANT'S

MOTION FOR REHEARING (pp. 2-4)

IN THE COURT OF APPEALS OF TEXAS

FOR THE FIFTH SUPREME JUDICIAL

DISTRICT

1. POINT OF ERROR TWO: The Court of

Appeals erred in holding that the

judgment recitals in the decree

terminating the parent-child relationship

between William Joiner and his children

could not be varied by extrinsic evidence

because judgment recitals do not impart

absolute verity when a collateral attack

is made by a nonresident.

2. Argument and Authorities: The

majority characterizes the jurisdictional

problem as one involving only "lack of

proper service of process, that is to

say, lack of jurisdiction of the person."

After making this characterization, the

majority concludes that it is not subject

to collateral attack since it reveals no

lack of jurisdiction on its face and

recites proper service. Even when the

majority opinion's characterization is

accepted, the cases cited by the majority

do not compel the conclusion that a

collateral attack must fail because of

the judgment recitals. The general rule

in Texas is that when a judgment is

collaterally attacked, public policy

ordinarly precludes inquiry into evidence

dehors the record. Crawford v. McDonald,

88 Tex. 626, 33 S.W. 325, 328 (1895)

("Whether an exception has been ingrafted

upon this rule by the decision of the

Supreme Court of the United States in

Pennoyer v. Neff, 95 U.S. 565, and, if

so, what is the effect thereof, is

foreign to this discussion.") In this

connection, both the courts and

commentators have recognized "subsequent

cases make clear that in attack by a non-

resident the lack of jurisdiction may be

shown by extrinsic evidence, and that

recitations in the judgment may be

contradicted." Hodges, “Collateral

A120

Attacks on Judgments, 41 Tex. L. Rev.

499, 542 (1963) (Fn. 382: Milner v.

Gatlin, 261 S.W.2d 1003 (Tex. Comm'n App.

1924 holdings improved. It is clear from

the court of appeals opinion, 211 S.W.

617, 621 (Tex. Civ. App. 1919), that

Martin v. Burns, 80 Tex. 676, 16 S.W.

1072 (1891), and other contrary cases

were before the court. The holdings of

the commission of appeals were approved

by the Supreme Court. Hicks v. Sias, 102

S.W.2d 460 (Tex. Civ. App.--Beaumont

1937, error ref'd); First Nat'l Bank v.

Alexander, 236 S.W. 229 (Tex. Civ. App. -

1921); see Bendy v. W.T. Carter & Bro.,

14 S.W.2d 813 (Tex. Comm'n App. 1929,

judgment adopted.) The reasoning behind

this exception is that Texas public

policyl does not override the Fourteenth

+As discussed below, it is extremely

doubtful that Texas public policy

elevates the interest of the public in

finality above the best interest of

children. See In the Interest of G.M.,

et al, Children.

Al21

Amendment of the United States

Constitution. See Hicks v. Sias, 102

S.W.2d 460, 464 (Tex. Civ. App.--

Beaumont 1937 writ ref'd); O'Boyle v.

Bevil, 259 F.2d 506, 513 (5th Cir. (Tex.)

1958); cf. Armstrong v. Manzo, 380 U.S.

545 (1965). This reasoning is

particularly compelling in this case

because it cannot be doubted that the

integrity of the family unit has found

protection in the Due Process Clause of

the Fourteenth Amendment. Meyer v.

Nebraska, 262 U.S. 390, 399 (1923);

Stanley v. Illinois, 405 U.S. 645 (1972).

Finally, nothing in Deen v. Kirk, 508

S.W.2d 70, 72 (Tex. 1974), or McEwen v.

Harrison, 162 Tex. 125, 345 S.W.2d 706,

710 (1961), provides that a collateral

attack is unavailable. See Hodges,

"Collateral Attacks on Judgments," Tex.

L. Rev. 163, 182-183 (1962).

A122

EXCERPT FROM APPELLANT'S SECOND

AMENDED MOTION FOR REHEARING (pp. 3-4) IN

COURT OF APPEALS OF TEXAS FOR THE FIFTH

SUPREME JUDICIAL DISTRICT

1. POINT OF ERROR TWO: The Court of

Appeals errred in holding that the

judgment recitals in the decree

terminating the parent-child relationship

between William Joiner and his children

could not be varied by extrinsic evidence

because judgment recitals do not impart

absolute verity when a collateral attack

is made by a nonresident.

2. Argument and Authorities: Prior

to its opinion on rehearing the majority

characterized the jurisdictional problem

as one involving only “lack of proper

service of process, that is to say, lack

of jurisdiction of the person." After

making this characterization, the majority

concluded that it is not subject to

A123

collateral attack since it reveals no lack

of jurisdiction on its face and recites

proper service. To the extent that the

portion of the opinion on rehearing quoted

above repudiates this analysis, this point

of error has been rendered unnecessary.

Even when the majority opinion's

characterization is accepted, the cases

cited by the majority do not compel the

conclusion that a collateral attack must

fail because of the judgment recitals.

The general ruie in Texas is that when a

judgment is collaterally attacked, public

policy ordinarily precludes inquiry into

evidence dehors the record. Crawford v.

McDonald, 88 Tex. 626, 33 S.W.325, 328

(1895) ("Whether an exception has been

ingrafted upon this rule by the decision

of the Supreme Court of the United States

in Pennoyer v. Neff, 95 U. S. 565, and, if

so, what is the effect thereof, is foreign

to this discussion.") In this connection,

A124

both the courts and commentators have

recognized that “subsequent cases make

clear that in an attack by a nonresident

the lack of jurisdiction may be shown by

extrinsic evidence, and that recitations

in the judgment may be contradicted.”

Hodges, “Collateral Attacks on Judgments,

41 Tex. L. Rev. 499, 542 (1963).

{Pn. 382: Milner v. Gatlin,

261 S. W. 1003 (Tex. Comm'n)

App. 1924 holdings improved.

It is clear from the court of

appeals opinion, 211 S.W. 617,

621 (Tex. Civ. App. 1919), that

Martin v. Burns, 80 Tex. 676, 16

S. W. 1072 (1891), and other

contrary cases were before the

court. The holdings of the

commission of appeals were

approved by the Supreme Court.

Hicks v. Sias, 102 S.W.2d 460

(Tex. Civ. App. --Beaumont 1937,

error ref'd); First Nat'l Bank v.

Alexander, 236 S.W. 229 (Tex. Civ.

App--1921); see Bendy v. W. T.

Carter & Bro., 14 S.W.2d 813 (Tex.

Comm'n App. 1929, judgment

adopted....]

The reasoning behind this exception

A125

is that Texas public policy! does not

override the Fourteenth Amendment of the

United Constitution. See Hicks v. Sias,

102 S.W. 2d 460, 464 (Tex. Civ. App.--

Beaumont 1937, writ ref'd); O'Boyle v.

Bevil, 259 F.2d 506, 513 (5th Cir. (Tex.)

1958); cf. Armstrong v. Manzo, 380 U.S.

545 (1965). This reasoning is

particularly compelling in this case

because it cannot be doubted that the

integrity of the family unit has found

protection in the Due Process Clause of

the Fourteenth Amendment. Meyer v.

Nebraska, 262 U. S. 390, 399 (1923);

+As discussed below, it is extremely

doubtful that Texas public policy elevates

the interest of the public in finality

above the best interest of children. See

In the Interest of G.M., et al, Children,

596 S.W.2d 846 (Tex. 1980); Wiley Vv.

Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).

A126

Stanley v. Illinois, 405 U.S. 645 (1972).

Finally, nothing in Deen v. Kirk, 508

S.W.2d 70, 72 (Tex. 1974), or McEwen v.

Harrison, 162 Tex. 125, 345 S.W.2d 706,

710 (1971), provides that a collateral

attack is unavailable. See Hodges,

"Collateral Attacks on Judgments," 41 Tex.

L. Rev. 163, 182-183 (1962).

“~I-

~ —

s ~

DETTTTO

a ee

“4

that it is not subject to collateral

attack since it reveals no lack of

jurisdiction on its face and recites

proper service. To the extent that the

portion of the opinion on rehearing

quoted above repudiates this analysis,

this point of error has been rendered

unnecessary.

Even when the majority opinion's

characterization is accepted, the cases

cited by the majority do not compel the

conclusion that a collateral attack must

fail because of the judgment recitals.

The general rule in Texas is that when a

judgment is collaterally attacked, public

policy ordinarily precludes inquiry into

evidence dehors the record. Crawford v.

McDonald, 88 Tex. 626, 33 S.W. 325, 328

(1898) ("Whether an exception has been

ingrafted upon this rule by the decision

of the Supreme Court of the United States

in Pennoyer v. Neff, 95 U.S. 565 (1878),

and, if so, what is the effect thereof,

is foreign to this discussion.") In this

connection, both the courts and

commentators have recognized that

"subsequent cases make clear that in an

attack by a nonresident the lack of

jurisdiction may be shown by extrinsic

evidence, and that recitations in the

judgment may be contradicted." Hodges,

"Collateral Attacks on Judgments, 41 Tex.

L. Rev. 499, 542 (1963).

Fn. 382: Milner v. Gatlin, 261

W.2d 1003 (Tex. Comm'n App. 1924

[

holdings improved. It is clear

from the court of appeals opinion

211

191

S.W.2d 617, 621 (Tex. Civ. App.

| ), that Martin v. Burns, 80 Tex.

676, 16 S.W. 1072 (1891), and other

contrary cases were before the

court. Hicks v. Sias, 102 S.W.2d

460 (Tex. Civ. App.--Beaumont

1937, error ref'd); First Nat'l

Bank v. Alexander, 236 S.W. 229

(Tex. Civ. App.--1921); see

Bendy v. W.T. Carter & Bro.,

14 S.W.2d 813 (Tex. Comm'n

App. 19.9, judgment adopted

A130

The reasoning behind this exception

is that Texas public policy® does not

override the Fourteenth Amendment cf the

United States Constitution. See Hicks v.

Sias, 102 S.W.2d 460, 464 (Tex. Civ. App.

Beaumont 1937, writ ref'd); O'Boyle v.

Bevil, 259 F.2d 506, 513 (Sth Cir. (Tex.)

1958; cf. Armstrong v. Manzo, 380 U.S.

545 (1965). This reasoning is

particularly compelling in this case

because it cannot be doubted that the

integrity of the family unit has found

protection in the Due Process Clause of

the Fourteenth Amendment. Meyer v.

Nebraska, 262 U.S. 390, 399 (1923);

Stanley v. Illinois, 405 U.S. 645 (1972).

Finally, nothing in Deen v. Kirk, 508

6as discussed above, it is extremely

doubtful that Texas public policy

elevates the interest of the public in

finality above the best interest of the

children. See In the Interest of G.M.,

et al, Children, 596 S.W.2d 846 (Tex.

1980); Wiley v. Spratlan, 543 S.W.2d 349,

352 (Tex. 1976).

A131.

S.W.2d 70, 72 (Tex. 1974), or McEwen v.

Harrison, 162 Tex. 125, 345 S.W.2d 706,

710 (1961), provides that a collateral

attack is unavailable. See Hodges,

"Collateral Attacks on Judgments," 41

Tex. L. Rev. 163, 182-183 (1962).

A132

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