# Appendix — Joiner v. Vasquez

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 464 U.S. 981

## Text

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

A2

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

-

ev
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.

A3

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

A4

Texas Family Code, which authorizes
citation by publication to persons who
cannot be notified by personal service or
register-d or certified mail, is
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

A5

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

A6

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

A7

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,

A8

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

Ag

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

Al9

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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a) ood Dm a) ua @) a ( f ch) ( pan 4 > =
4 UV) 4) 4 (2) t () 4 i 4 om | > O a

equitable doctrine,
Suit to set aside a
termination of the

father. Neither ca

»
Wa
~~)

i cannot agree

p

©

that res

should bar

judicata, an

the

present

void judgment of

arental rights

majority

policy of

Ou

of the chil
a hearing i

,
lal
as

+

showed at

children's

poe |

ct

aia

tee

ation case, the

mth

judgments should

oC
-

ohenh! 7
ennunil

ated by

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W
(
h- Ww

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

i}
-~_->

occurred and w

1s

re
-—

_
+ i)

the trial judge on

hould be sustained and

Tne facts as

a:

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.

m
. 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!

~
ay
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W

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

t?
+

to ser

—

—

ing

a

attemp
pursuan

et

hy

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

O
a]

%

)

invokes the doctrine of res judicata to
preclude this matter. Thus, this tragedy

c¢ Cc ] re
for these children ha

7)

° te r * > , =
been perpetuated.

the denial of

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+

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ct
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Ve
(D
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

4
4

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

O
rh
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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

~ .
A4

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

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sal

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seeking a new tria.
interest of the children can be

: determined, which should be the primary

ct
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concern of this court, as well as of

; } rm) law v117 c . sr + ra
trial court. The law requires a court to

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although presented to the trial id y
Joiner, the guardian did not adopt

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Joiner's pleadings in tne trial court.

With this I cannot agree because tne

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guardian ad litem

protecting the children’

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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

a

held up to ridicule by laymen.

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errors replete in this case, the

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majority's observation, wit

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Instead, the majority's rationale is but

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. 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
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vans V.

also

368 S.W.2d 783,

"may be

ent

judgm

void

(a

dism'd)

court at any

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collaterally a

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et

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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
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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
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considering the best interest of children

in a termination case. Accordingly, I am

rh

issent in this tragedy o

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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

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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;
(c) right to confrontation and
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

ct
So
1)
mM

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

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A67

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a a > No s ud U4 w )
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fy ©) Oy ym “. w \ | W)
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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

e~
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.

V.

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

Ga

t

tna

2)
4)
G
io)
rt)
Ou

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

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that the defendan
manner reguired by law. No presumption

should be indul

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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

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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

y

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provides, 1n part, ln every sucn case a

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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

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A82

Petitioner would show that a person

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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

wn

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

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enda

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sa

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physical or emotional well-being.

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the possession

in

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in the

filed

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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

ww

. NO answer or appearance was Mm

F. Petitioner had ineffective
, Ss .
assistance of counsel. Petitioner woul

1) He failed to file an answer fo

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error made in the attempt to effect
personal service on the Petitioner as a
nonresident;

(3) He failed to attempt to locate

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nt)

7

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

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nt that Respondent

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irther legal remedies

breach tl!

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money to

Petitioner prays that Respondent be ci

to answer and appear for hearing on this

Bill of Review.

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Review be granted and tha
Termination be vacated and held for

naught.

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of Respondent's petition tor
termination.
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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

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A93

na
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ndent, a

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R
a
.

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:

I.

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:

I.

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-
5)

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...
ul

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

e

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 ~

a?

DETTTTO
a ee

OM
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

4

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1088%3A2. Public record. Not legal advice.