In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-26-00062-CV
IN THE INTEREST OF X.I.C., A CHILD
On Appeal from the 467th District Court Denton County, Texas1
Trial Court No. 24-2378-467, Honorable Lee Gabriel, Sitting by Assignment
August 27, 2026
MEMORANDUM OPINION
Before DOSS and YARBROUGH and PRATT, JJ.
Appellant, Attauyo “Ty” Nsekhe, appeals a default judgment granted in favor of Appellee, Bibiana Carrasco. By his five issues he challenges the default judgment claiming the trial court erred by: (1) granting Carrasco’s first motion for substituted service without sufficient evidence; (2) granting Carrasco’s second motion for substituted service without sufficient evidence; (3) granting a default judgment when the substituted service was not in strict compliance with the court’s orders; (4) ordering child support payments without sufficient evidence; and (5) awarding attorney’s fees without a request for
1 This cause was originally filed in the Second Court of Appeals and was transferred to this Court
by a docket-equalization order of the Supreme Court of Texas. TEX. GOV’T CODE § 73.001. Where there is a conflict with the precedent of this Court, this appeal has been decided in accordance with the precedent of the Second Court of Appeals. TEX. R. APP. P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022).
attorney’s fees in the pleadings. We reverse the judgment and remand for further proceedings.
BACKGROUND
On March 18, 2024, Bibiana Carrasco filed a petition to adjudicate parentage against Appellant. Following the issuance of the citation, Carrasco hired process servers who attempted to personally serve Appellant on April 4, 6, 9, and 10, at an address in Grand Prairie. On each attempt, there was no answer at the location, and the process servers attached their contact information to the door.
Carrasco then moved the trial court for substituted service. TEX. R. CIV. P. 106(b).
On April 25, 2024, the trial court granted Carrasco’s motion and authorized substituted service. The order required that service be effected by leaving a copy of the citation and the pleadings and orders with someone older than sixteen at the Grand Prairie address “AND” by sending a copy of the citation and of the pleadings and orders by text message. On April 25, 2024, the process server texted the documents to Appellant, who did not respond to the text. The process server did not leave a copy of the citation and the pleadings at the physical address as required by the order.
With no answer from Appellant, Carrasco filed a second motion for substituted service on May 1, 2024. Attached to this motion is the sworn statement of the process server indicating he attempted service to Appellant’s phone number, but he does not reveal any service attempts at the purported address of Appellant in Grand Prairie. Also attached is a statement by Carrasco, reiterating Appellant’s Grand Prairie address, phone number, and Instagram account. Carrasco’s statement does not indicate if substituted
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service by these methods would be reasonably effective to give Appellant notice of the lawsuit. The trial court issued a new order authorizing substituted service to be “effected by posting on the door a copy of the citation and of the pleading[s] and orders[,]” at the Grand Prairie address, and proof of service was to be made “by sending a copy of the citation and the pleading” where it was served. On May 6, Carrasco filed her process servers’ affidavits stating they again texted the citation and pleadings to Appellant’s phone number on May 3 and attached a copy of the citation and pleadings to the door of the address on May 4. The return of service affidavits included a screen shot of the text message sent and a picture of some documents in a plastic bag taped to the door of the residence.
The trial court held a hearing on June 17, 2024, and issued temporary orders July 18, 2024. Carrasco’s attorney indicated that Appellant had been served through substituted service, and the trial court took judicial notice of its files. However, nothing in the file indicates Appellant was notified of this hearing. Nor does the record indicate any attempt to deliver the subsequent order to Appellant. The certificate of service only lists Carrasco’s attorney.
On April 11, 2025, after notice of dismissal to Carrasco, the matter was set for a final bench trial on June 13, 2025. Right before the final hearing, Carrasco’s attorney filed a Certificate of Last Known Address, which identified an address in Dallas for Appellant. At this hearing, the trial court took judicial notice of its own files and declared Appellant had been served on May 4, 2024, pursuant to its previous substituted service orders, at the Grand Prairie address. Despite providing the different address right before the final hearing, Carrasco’s attorney admitted she did not attempt to provide Appellant
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with notice of the final hearing after all the previously failed attempts at service. As part of her case in chief, Carrasco did, however, include a copy of an order in a suit to modify parent-child relationship (SAPCR) involving a different child and mother rendered on May 8, 2024. The recitation of the order stated that Appellant participated in that lawsuit and was represented by counsel. The order also indicated Appellant’s address as the Dallas address. Carrasco’s attorney confirmed this Dallas address with Carrasco during direct examination.
Following the hearing, the trial court rendered a final order adjudicating parentage in which, among other things, it ordered Appellant to pay child support and attorney’s fees. On June 17, 2025, the clerk of the trial court mailed a copy of the final order to Appellant’s address in Dallas.2 On December 10, 2025, Appellant timely filed his Notice of Appeal. Appellant also timely filed his brief, but Appellee did not favor us with a brief.
ANALYSIS
STANDARD OF REVIEW
A restricted appeal directly attacks a default judgment. Szabuniewicz v. May, No.
02-25-00625-CV, 2026 Tex. App. LEXIS 5931, at *5 (Tex. App.—Fort Worth June 25, 2026, no pet. h.) (mem. op.). To prevail in a restricted appeal, an appellant must establish that (1) he filed notice of the restricted appeal within six months after the judgment was signed, (2) he was a party to the underlying lawsuit, (3) he did not participate in the hearing that resulted in the judgment complained of and did not timely file any post- judgment motions or requests for findings of fact and conclusions of law, and (4) error is
2 It is worth noting that Appellant’s phone number in this order was also different from the one previously used to attempt service on the Appellant.
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apparent on the face of the record. Clamon v. Delong, 477 S.W.3d 823, 825 (Tex. App.— Fort Worth 2015, no pet.) (citation omitted). The first three requirements for a restricted appeal are jurisdictional, but the fourth is not. Ex parte E.H., 602 S.W.3d 486, 497 (Tex. 2020).
Here, the record reveals:
(1) Appellant filed his notice of appeal three days before the expiration of six months after the June 13, 2025 Order Adjudicating Parentage was signed by the trial court;
(2) he was a party to the underlying lawsuit; and
(3) he did not participate in the final hearing and did not timely file any post-
judgment motions or requests.
We have jurisdiction to hear this appeal, and we are therefore required to determine if “error is apparent on the face of the record.” TEX. R. APP. P. 30, 26.1(c); Clamon, 477 S.W.3d at 825. The face of the record in a restricted appeal consists of the papers on file with the trial court when judgment was rendered. Clamon, 477 S.W.3d at 825 (citations omitted). Thus, for purposes of a restricted appeal, we may not consider evidence unless it was before the trial court when it rendered judgment. Id. After examining the record, we conclude there is insufficient evidence to demonstrate that Appellant was properly served with a copy of the citation or pleadings. Defective service is considered error on the face of the record. Szabuniewicz, 2026 Tex. App. LEXIS 5931, at *7 (citing World Envtl., L.L.C. v. Wolfpack Envtl., L.L.C., No. 01-08-00561-CV, 2009 Tex. App. LEXIS 1742, at *2 (Tex. App.—Houston [1st Dist.] Mar. 12, 2009, no pet.) (mem. op.)).
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ISSUES ONE AND TWO—INSUFFICIENT AFFIDAVIT FOR SUBSTITUTED SERVICE By his first issue, Appellant contends the affidavit submitted with Carrasco’s Amended Motion for Alternative Service filed on April 24, 2024, was insufficient to authorize substituted service under Rule 106(b). His second issue similarly argues the trial court could not authorize substituted service based on the affidavit accompanying Carrasco’s Second Motion for Alternative Service filed on May 1, 2024. We agree.
Under Rule 106(b) of the Texas Rules of Civil Procedure, a trial court may authorize substituted service “upon motion supported by affidavit.” TEX. R. CIV. P. 106(b). The party seeking substituted service must file a motion supported by an affidavit that strictly complies with the Rule. Id.; see also Richardson v. Builder Servs. Grp., Inc., No. 02-24-00349-CV, 2025 Tex. App. LEXIS 3198, at *7 (Tex. App.—Fort Worth May 8, 2025, no pet. h.) (mem. op.). The affidavit must list the “location where the defendant can probably be found” and must state specifically the facts showing that the traditional methods of service have been attempted unsuccessfully at that location. Id. Under Subsection 106(b)(2), the affidavit or other evidence must show that the substituted method of service “will be reasonably effective to give the defendant notice of the suit.” TEX. R. CIV. P. 106(b)(2). Substituted service may not properly issue on a motion supported by an affidavit “that is conclusory or otherwise insufficient.” Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). Texas courts “are obliged to ‘rigidly enforce’ the requirements of Rule 106(b) and may make no presumptions in favor of valid issuance, service, or return of citation.” Davis v. Martin, No. 01-07-00831-CV, 2009 Tex. App. LEXIS 1040, at *5 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (mem. op.).
The affidavit from Carrasco’s process server accompanying the first motion for substituted/alternative service included statements related to four different service
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attempts at the Appellant’s purported Grand Prairie address. Recently, in Richardson v. Builder Servs. Grp., Inc., the Second Court of Appeals found an affidavit from a process server with a similar recitation was insufficient to provide a basis for authorizing substituted service. 2025 Tex. App. LEXIS 3198, at *7–10.3 The Richardson Court’s analysis focused on the sufficiency of the affidavit supporting the plaintiff’s motion for substituted service. The affidavit contained a recitation in which the process server went to the address on different days and at different times, pressed the doorbell and knocked, but then received no answer. Id. at *8–9. Unlike the affidavit here, the process server in Richardson also included his observations of the property at each visit. Despite the recitations of the process server, the Richardson Court held the affidavit “did not contain any probative evidence that the [address of attempted service] was a place where [the defendant] could probably be found or that the substituted method of service would have been ‘reasonably effective’ to give [the defendant] notice of the suit.” Id. at *9 (citing TEX. R. CIV. P. 106(b)).
Here, we have no recitations of probative value in the process server’s affidavit as to why the Grand Prairie address was where Appellant could be found. Like in Richardson and based on the affidavit, Carrasco’s process servers did not speak with neighbors or call Appellant to confirm the address. Unlike in Richardson, here, the process server attached a printout from a public database based on Appellant’s 2001 driver’s license, reciting Appellant’s name, address, and driver’s license number.4 But, the printout was not authenticated, and neither the process server’s affidavit, nor any recitation in the
3 Although the defendant in Richardson filed a motion to set aside the default, and therefore, timely
filed a post-judgment motion and appeal, the facts are remarkably similar to the present matter. Id. at *3– 5.
4 This would make the information relied upon in the printout over twenty years old.
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motion, indicated where the printout came from or if it was reliable.5 Carrasco’s affidavit also attached to the motion stated “[r]espondent can be found at his home, located at [the Grand Prairie address].” However, “[s]ubstituted service may not properly issue on a motion supported by an affidavit that is conclusory or otherwise insufficient.” Id. at *7 (internal quotations and citation omitted). Carrasco’s affidavit states no additional facts indicating why she believes the Grand Prairie address to be Appellant’s residence; and therefore, her statement identifying his address cannot support service under Rule 106(b). As in Richardson, the affidavits attached to Carrasco’s Amended Motion for Alternative Service did not strictly comply with Rule 106(b).
Carrasco’s Second Motion for Alternative Service fairs no better. This time, the process server’s affidavits stated he text messaged Appellant to a phone number pursuant to the trial court’s order authorizing substituted service by text message. 6 No additional probative evidence was attached to indicate why Appellant could reasonably be found at the Grand Prairie address. Carrasco’s second affidavit is duplicative of her first and simply reattached to the second motion. The conclusory affidavit included no additional facts to demonstrate how she knew the Grand Prairie address or telephone number was indeed Appellant’s. Again, the affidavits accompanying Carrasco’s motion for substituted service did not strictly comply with Rule 106(b).
5 The record also casts doubt as to whether Appellant even resided at the Grand Prairie address
when service was attempted. Carrasco’s attorney apparently learned of a new address and phone number from a final order in an unrelated SAPCR proceeding, which also involved Appellant and was heard on May 8, 2024. This other order was rendered on June 17, 2024.
6 Nothing in the record indicates whether the phone number was recently used by Appellant or
whether texting him at that number would “be reasonably effective to give [Appellant] notice of the suit.” TEX. R. CIV. P. 106(b). At the default hearing, Carrasco produced some text messages between herself and Appellant at the phone number, but those exchanges occurred over a year before she attempted to serve him. Again, nothing in the affidavits indicated that texting Appellant at the phone number would be reasonably effective to give notice of the lawsuit.
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Therefore, we hold the trial court erred by granting Carrasco’s motions for substituted service. Appellant’s first and second issues are sustained. ISSUE THREE—DEFAULT JUDGMENT WITH LACK OF JURISDICTION When combined with the previous issues, Appellant’s third issue is dispositive of this appeal. He argues the trial court erred by granting Carrasco a default judgment when the trial court lacked jurisdiction over Appellant due to lack of service. We agree.
Default judgments are greatly disfavored under Texas law, consistent with the strong policy preference for adjudicating cases on the merits. Tabakman v. Tabakman, 728 S.W.3d 703, 707 (Tex. 2025) (quotations and edit omitted). To sustain a default judgment under direct attack, the plaintiff in the trial court must strictly comply with the rules relating to the issuance of citation, the manner and mode of service, and the return of process in the record. Vespa v. Nat’l Health Ins. Co., 98 S.W.3d 749, 751 (Tex. App.— Fort Worth 2003, no pet.) (citations omitted). “Any doubts about a default judgment must be resolved against the party who secured the default.” Richardson, 2025 Tex. App. LEXIS 3198, at *7 (citing In re Lakeside Resort JV, LLC, 689 S.W.3d 916, 922 (Tex. 2024) (orig. proceeding)).
When the plaintiff uses substituted service, Texas law places a burden on the plaintiff to prove that he or she served the defendant in the manner required by the applicable statue. Vespa, 98 S.W.3d at 751–52 (citation omitted). Texas law prefers personal service over substitute service. Id. There are no presumptions in favor of valid issuance, service, and return of citation. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573 (Tex. 2006) (citing Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994)). Strict compliance with the rules governing service of citation is
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mandatory if a default judgment is to withstand an attack on appeal. Ins. Co. v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009) (citing Primate Constr., 884 S.W.2d at 152). Failure to comply with these rules constitutes error on the face of the record. Id. (citing Primate Constr., 884 S.W.2d at 153). Trial courts lack jurisdiction over defendants who were not properly served in strict compliance with the applicable requirements. Spanton v. Bellah, 612 S.W.3d 314, 316–17 (Tex. 2020) (citations omitted).
Here, because we conclude the affidavits in support of Carrasco’s motions for substituted service did not strictly comply with Rule 106(b)’s requirements, such affidavits could not support the trial court’s subsequent orders for substituted service. The various methods of attempted service on Appellant under either order were thus invalid and of no effect. See Wilson, 800 S.W.2d at 836. Accordingly, we hold that the trial court did not have personal jurisdiction over Appellant when it entered the default judgment, and the default judgment against him must be reversed. We sustain Appellant’s third issue.
CONCLUSION
Having sustained Appellant’s issues 1–3, we reverse the trial court’s judgment and remand for further proceedings. Because we have reversed the trial court’s judgment, we need not address the remainder of his issues, as they are rendered moot. TEX. R. APP. 47.1.
Laura A. W. Pratt
Justice