Is Receiving Suit Papers Alone Enough for ''Being Served'' ?
In Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990), the supreme court held that a trial court's jurisdiction is dependent upon citation issued and served in a lawful manner. See id. at 836.
When a defendant directly attacks a default judgment by complaining that he was not served in strict compliance with the rules of civil procedure, "there are no presumptions in favor of valid issuance, service, and return of citation." Uvalde Country Club, 690 S.W.2d at 885; see Wilson, 800 S.W.2d at 836.
Unless the record affirmatively shows strict compliance with the provided manner and mode of service of process, a default judgment will not withstand an attack based upon a claim of invalid service. See Wilson, 800 S.W.2d at 837; Pratt, 746 S.W.2d at 487 (citing McKanna, 388 S.W.2d at 929).
Also in Wilson, the supreme court addressed waiver of defective service, holding that admitting receipt of suit papers did not waive the complaint of improper service. See Wilson, 800 S.W.2d at 837.
Relying on First National Bank v. Peterson, 709 S.W.2d 276, 280 (Tex. App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.) and Hurst v. A.R.A. Manufacturing Co., 555 S.W.2d 141, 142 (Tex. Civ. App.-Fort Worth 1977, writ ref'd n.r.e.), the supreme court contrasted an admission that "process was received" with an admission that "it was 'duly served.'" Wilson, 800 S.W.2d at 837.
In Peterson, the party admitted the facts of service, not just receipt of suit papers. See Peterson, 709 S.W.2d at 278.
In Hurst, the court held a party's collateral attack on a default judgment could not rest on lack of personal jurisdiction because the party "admitted in his brief that he was duly served and filed no answer." Hurst, 555 S.W.2d at 142.
However, the court did not quote the language that admitted due service, nor did the party complain of defective service. See id.