In the Interest of I.J.W. and M.R.W., Children v. the State of Texas

COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS
                                         ————————————
                                            No. 08-25-00116-CV
                                         ————————————
                           In the Interest of I.J.W. and M.R.W., Children

                        On Appeal from the 150th Judicial District Court
                                     Bexar County, Texas
                                Trial Court No. 2018CI17825


                                 M E MO RA N D UM O PI NI O N 1
         Appellant and Appellee are the parents of the two minor children at the center of the

underlying suit affecting the parent-child relationship.2 Following a hearing on Mother’s petition

to modify the parent-child relationship, at which Father did not appear, the associate judge signed

a default final order on September 10, 2024. On March 10, 2025, Father filed a restricted appeal.

On appeal, Father asserts (1) the record does not demonstrate proper substituted service, (2) the



1
 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code Ann.
§ 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our own. See
Tex. R. App. P. 41.3.
2
 To protect the identity of the children, the opinion will refer to Appellant as “Father,” Appellee as “Mother,” and the
children simply as “the children.” See Tex. R. App. P. 9.10.
return of service was defective, (3) the premature filing of the Certificate of Last Known Address

and Declaration of Military Status invalidated the judgment, and (4) the clerk failed to issue notice

of the judgment. Mother asserts Father is not entitled to a restricted appeal because he did not

satisfy all the requirements for such an appeal. We affirm.

                                   I. PROCEDURAL BACKGROUND3
         On July 26, 2024, Mother filed a petition to modify the parent-child relationship in which

she requested service of citation on Father “at N7387 Miners Castle Road, Munising, [Michigan]

49855, or wherever he may be found.” A few weeks later, Mother filed a motion for substituted

service pursuant to Texas Rule of Civil Procedure 106 in which she contended service had been

attempted on Father by delivering to him, in person, a true copy of the citation and the petition at

his “usual place of abode, all to no avail.” She stated that, because “several attempts at personal

service” upon Father had not been successful, Father “may be given reasonably effective notice of

this suit by posting a true copy of the citation, with a copy of the petition attached to the door at

N7387 Miners Castle Road, Munising, MI 49862.”

         In support of her request for substituted service, Mother filed a declaration signed by Stacy

Maki who resides in Michigan. Maki stated she attempted to serve Father on August 13, 2024, at

1:04 p.m., 1:10 p.m., and 3:06 p.m. all with “no answer at the address.”4 Maki stated she “made

sufficient investigation of the premises to believe that the failure to personally serve [the citation

and pleadings was because Father] was unavailable or is evading service.” Maki opined it was

“impracticable to continue endeavoring to serve process on [Father] in person and that additional


3
 The factual background of the suit to modify the parent-child relationship is not relevant to this appeal. See Tex. R.
App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses
every issue raised and necessary to final disposition of the appeal.”).
4
 In addition to the citation, Maki attempted to serve the following pleadings: the petition to modify and a motion for
enforcement of order in suit affecting the parent-child relationship and enforcement of order for attorney’s fees.

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attempts would be unsuccessful.” She concluded her declaration by stating she believed the most

effective way to give Father actual proper notice of the lawsuit was to serve the citation and

pleadings (1) to anyone over sixteen years of age at Father’s address, and then by mailing a copy

via first class mail or, (2) by affixing the citation and pleadings to the front door at Father’s address,

and then by mailing a copy via first class mail. On August 13, 2024, the trial court signed an order

granting Mother’s motion for substituted service and ordering that Father be given notice of the

suit by posting a true copy of the citation, with a copy of the petition attached to the door at N7387

Miners Castle Road, Munising, Michigan, 49862. The court also ordered that proof of service upon

Father be made pursuant to Texas Rule of Civil Procedure 107.

        On September 10, 2024, a hearing on Mother’s petition to modify was held before an

associate judge. At the hearing, Mother’s counsel informed the court that Father had been served

but did not answer. The court took judicial notice of the Certificate of Last Known Address, the

Declaration of Military Status, and that Father had been served on August 13, 2024, at 6:19 p.m.

at N7387 Miners Castle Road.5 Following the hearing, the associate judge signed the default final

order on September 10, 2024. Father filed his notice of restricted appeal on March 10, 2025.

                                        II. RESTRICTED APPEAL
        “A restricted appeal permits a direct attack on a default judgment when the deadline for

filing an ordinary appeal has passed.” Shamrock Enters., LLC v. Top Notch Movers, LLC, 728

S.W.3d 693, 696 (Tex. 2026). To prevail in a restricted appeal, an appellant must prove that: (1)

he filed a notice of restricted appeal within six months after the judgment was signed; (2) he was

a party to the underlying lawsuit; (3) he did not participate at the hearing that resulted in the


5
  The Return of Service is not contained in the appellate record but is, instead, contained in the appendix to both
Father’s and Mother’s appellate briefs. The Certificate of Last Known Address and the Declaration of Military Status
are not contained in the appellate record but are, instead, contained in the appendix to Father’s appellate brief.

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complained-of judgment and did not timely file any post-judgment motions or requests for findings

of fact and conclusions of law; and (4) error is apparent on the face of the record. Pike-Grant v.

Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam); see also Tex. R. App. P. 26.1(c), 30. “[T]he

first three requirements for a restricted appeal are jurisdictional, the fourth is not.” Ex parte E.H.,

602 S.W.3d 486, 497 (Tex. 2020) (“An appellant who satisfies the first three requirements

establishes the court’s jurisdiction and must then establish error from the face of the record to

prevail in the restricted appeal.”); Int. of S.D.H., No. 04-24-00477-CV, 2024 WL 4610814, at *1

(Tex. App.—San Antonio Oct. 30, 2024, no pet.) (mem. op.) (per curiam) (dismissing appeal for

lack of jurisdiction because appellant did not timely file restricted appeal and filed request for

findings of fact and conclusions of law and motion for new trial). In a restricted appeal, the

appellant has the burden of proof. Price v. MG Bldg. Materials, Ltd., No. 04-18-00760-CV, 2019

WL 3208827, at *1 (Tex. App.—San Antonio July 17, 2019, no pet.) (mem. op.).

       Here, there is no dispute that Father filed a notice of restricted appeal within six months

after the default final order was signed; he was a party to the underlying lawsuit; and he did not

participate at the hearing that resulted in the complained-of judgment. Therefore, we first consider

Mother’s contention that Father is not entitled to a restricted appeal because he filed a post-

judgment motion and, if entitled, whether error is apparent on the face of the record.

   III. FILING OF POST-JUDGMENT MOTION AND THIS COURT’S JURISDICTION

       Mother asserts Father does not qualify for a restricted appeal because he filed a timely post-

judgment motion—an amended bill of review. The amended bill of review is not part of the record

on appeal, but is, instead, included in the appendix to Mother’s appellate brief. “It is well

established that documents attached to an appellate brief which are not part of the record may

generally not be considered by the appellate court.” Robb v. Horizon Comtys. Improv. Ass’n, 417


                                                  4
S.W.3d 585, 589 (Tex. App.—El Paso 2013, no pet.). Nevertheless, assuming Father timely filed

a bill of review, we disagree with Mother’s characterization of the bill of review as a post-judgment

motion.

           A post-judgment motion extends the trial court’s plenary power to change its final

judgment. See Tex. R. Civ. P. 329b(g) (stating that motions to modify, correct, or reform a

judgment extend trial court’s plenary power and time to perfect appeal); Lane Bank Equip. Co. v.

Smith S. Equip., Inc., 10 S.W.3d 308, 310, 314 (Tex. 2000) (any post-judgment motion, no matter

what it is called, will extend plenary power if it seeks a substantive change in the judgment and is

filed within the time limits for a motion for new trial); Stevens v. Smith, No. 04-21-00105-CV,

2021 WL 4296038, at *2 n.1 (Tex. App.—San Antonio Sept. 22, 2021, no pet.) (mem. op.)

(per curiam) (“Courts treat an appropriate post-judgment motion as a motion to extend post-

judgment deadlines.”).

           A petition for bill of review is a new lawsuit filed under a different cause number than the

case whose judgment the bill of review complainant is attacking.6 Retzlaff v. Mendieta-Morales,

356 S.W.3d 676, 679 (Tex. App.—El Paso 2011, no pet.). Unlike a restricted appeal, which is

limited to the trial court record existing at the time of judgment, the record in a bill of review

proceeding is not limited to the prior proceedings and the parties may present evidence to develop

the record and support their positions. See Joseph v. Jack, 624 S.W.3d 1, 7 (Tex. App.—Houston

[1st Dist.] 2021, no pet.); In re M.C.B., 400 S.W.3d 630, 633 (Tex. App.—Dallas 2013, no pet.)

(“In contrast [to a restricted appeal], when a default judgment is attacked by motion for new trial

or bill of review in the trial court, the record is not so limited.”). “Prima facie proof may be

documentary evidence, discovery answers, and affidavits on file, ‘along with such other evidence


6
    A restricted appeal is filed directly in an appellate court. M.C.B., 400 S.W.3d at 633; Tex. R. App. P. 30.

                                                              5
that the trial court may receive in its discretion.’” Joseph, 624 S.W.3d at 7 (quoting Baker v.

Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979)).

       The key distinction between these pleadings is that post-judgment motions must be filed

within 30 days after judgment is signed and operate to extend the trial court’s plenary power. See

Tex. R. Civ. P. 329b (“Time for Filing Motions”). By contrast, a bill of review is an independent

action to set aside a judgment (in this case, the final default order) that is no longer subject to

challenge by a motion for new trial or appeal. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).

Based on these distinctions, we conclude Father’s filing of a bill of review does not preclude him

from filing a restricted appeal.

                        IV. ERROR ON THE FACE OF THE RECORD
       Assuming the jurisdictional requirements have been satisfied, “a restricted appeal may be

sustained on the merits only if error is apparent on the face of the record.” Shamrock Enters., 728

S.W.3d at 698. “The face of the record, for purposes of writ of error review, consists of all papers

on file in the appeal, including the statement of facts.” Norman Commc’ns v. Texas Eastman Co.,

955 S.W.2d 269, 270 (Tex. 1997) (per curiam); see Stankiewicz v. Oca, 991 S.W.2d 308, 312

(Tex. App.—Fort Worth 1999, no pet.) (restricted appeal refusing to consider post-judgment proof

that service address was incorrect). As such, a review of a restricted appeal necessarily includes

review of the legal and factual sufficiency of the evidence. Norman Commc’ns, 955 S.W.2d at

270.

       A. Substituted service under Texas Rule of Civil Procedure 106(b)

       Rule 106 provides, in part, as follows:

       (b) Upon motion supported by a statement--sworn to before a notary or made
           under penalty of perjury--listing any location where the defendant can
           probably be found and stating specifically the facts showing that service has


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               been attempted under (a)(1) or (a)(2) at the location named in the statement
               but has not been successful, the court may authorize service:
                  (1) by leaving a copy of the citation and of the petition with anyone older
                      than sixteen at the location specified in the statement; or
                  (2) in any other manner, including electronically by social media, email,
                      or other technology, that the statement or other evidence shows will be
                      reasonably effective to give the defendant notice of the suit.

Tex. R. Civ. P. 106(b).

         Maki’s declaration stated she attempted to serve Father on August 13, 2024 at 1:04 p.m.,

1:10 p.m., and 3:06 p.m. all with “no answer at the address.” On appeal, Father contends he “was

not personally served”; however, he acknowledges “the process server executed service by posting

at [his] residence.”7 In his first issue, Father asserts the return of service was defective because it

was not supported by an affidavit demonstrating reasonable efforts to serve him at his usual place

of abode. He contends “[m]ultiple attempts made on the same day, within hours of each other, are

legally insufficient to meet this standard.”

         The entirety of Father’s first issue consists of two sentences and a citation to State Farm

Fire & Casualty Co. v. Costley, 868 S.W.2d 298 (Tex. 1993) (per curiam). Father’s reliance on

State Farm is misplaced because the frequency or timing of the attempted service was not an issue

in the appeal. In that case, State Farm made multiple attempts to personally serve Costley before

requesting substituted service under Rule 106(b). Id. at 298. The issue in State Farm was whether

the default judgment against Costley should be reversed because service by U.S. mail did not show

when Costley actually received notice. Id. The Court noted that Rule 106(b) “contemplates other

procedures which will not necessarily furnish evidence of actual notice.” Id. at 299. The Court




7
  We again note that the record on appeal does not contain a copy of the return of service. It was Father’s burden, as
the party filing a restricted appeal, to ensure a sufficient record is presented to show error on the face of the record.
See Price, 2019 WL 3208827, at *1.

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held that service by mail achieves the purpose of Rule 106(b) which is “to allow plaintiffs to effect

service where proof of actual notice under Rule 106(a) is impractical.” Id. at 298–99.

        “The Texas Rules of Appellate Procedure provide specific requirements for appellate

briefs, and appellants bear the burden to present their arguments in compliance with these rules.”

The Texas Brandon Corp., Inc. v. EOG Res., Inc., No. 04-19-00403-CV, 2020 WL 7232135, at *1

(Tex. App.—San Antonio Dec. 9, 2020, pet. denied) (mem. op.); Tex. R. App. P. 38.1. Appellants

must provide understandable, succinct, and clear argument for why their complaint has merit in

fact and in law; and to cite to and apply the law that is applicable to their complaint along with

record references that are appropriate. Texas Brandon Corp., 2020 WL 7232135, at *1; Tex. R.

App. P. 38.1(f), (h), (i). “Conclusory statements unsupported by legal or record citations do not

satisfy this requirement, and failure to provide substantive analysis will result in a waiver of

complaints.” Texas Brandon Corp., 2020 WL 7232135, at *1. Because this issue is inadequately

briefed, it presents nothing for our review. Pedroza v. Tenet Healthcare Corp., 555 S.W.3d 608,

612 (Tex. App.—El Paso 2018, no pet.) (“When an issue is inadequately briefed, and lacks a

substantive analysis and citation to legal authority, it presents nothing for our review.”). Even if

not waived, we conclude Father’s complaint lacks merit.

       “Substituted service exists to allow plaintiffs to effect service where proof of actual notice

under Rule 106(a) is impractical.” State Farm, 868 S.W.2d at 298. “Upon receipt of an affidavit

satisfying Rule 106(b), the trial court may authorize substituted service which, shown from the

affidavit or other evidence, is reasonably calculated to provide notice.” Id. at 299. Rule 106 allows

the court to “authorize service . . . in any other manner, including electronically by social media,

email, or other technology, that the statement or other evidence shows will be reasonably effective

to give the defendant notice of the suit.” Tex. R. Civ. P. 106(b)(2).



                                                 8
         Here, Maki’s declaration stated her attempts to personally serve Father, her belief that

further attempts to personally serve him were impractical, and her belief that the most effective

way to give him proper notice was to deliver the citation and the pleadings to anyone over sixteen

years of age at the above address, and then by mailing a copy via first class mail or by affixing the

citation and the pleadings to the front door at his above address, and then by mailing a copy via

first class mail. The trial court took judicial notice that Father had been served. We conclude Father

has not demonstrated error on the face of the record; we overrule Father’s first issue.

         B. Substituted service under Texas Rules of Civil Procedure 103 and 107

         In his second issue, Father asserts the return of service was defective because it did not

identify Maki’s authority under Rule 103 and did not specify the manner of service as required by

Rule 107.

         Rule 103 provides that “[p]rocess including citation and other notices, writs, orders, and

other papers issued by the court may be served anywhere by (1) any sheriff or constable or other

person authorized by law, (2) any person authorized by law or by written order of the court who is

not less than eighteen years of age, or (3) any person certified by the Judicial Branch Certification

Commission.” Tex. R. Civ. P. 103. On appeal, Father’s only complaint is that Maki is not certified

by the Judicial Branch Certification Commission.

         The return of service is not part of the record on appeal; however, in her declaration, Maki

stated that she is “authorized to serve citations under Texas Rule of Civil Procedure 103.” Although

Maki does not state the basis of her authorization under Rule 103, nothing in the record controverts

her assertion that she was authorized to serve the citation. It was Father’s burden to show error on

the face of the record, and because he has failed to do so, we overrule his second issue.8


8
 Father also contends the return of service was defective because it “did not specify the manner of service as required
by Rule 107.” Father does not elaborate on this conclusory statement or cite to any authoritative support. Because his

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         C. Premature filing of Certificate of Last Known Address and Declaration of
            Military Status

         In his third issue, Father contends Mother filed the Certificate of Last Known Address and

Declaration of Military Status before service occurred in violation of Texas Rule of Civil

Procedure 239a, which invalidated the judgment.

         Rule 239a provides, in part, that “[a]t or immediately prior to the time . . . [a] final default

judgment is rendered, the party taking the same or his attorney must certify to the clerk in writing

the last known email address and mailing address of the party against whom the judgment is taken,

which certificate shall be filed among the papers in the cause.” Tex. R. Civ. P. 239a. Father

provides no authoritative support for his argument that filing these documents “prematurely”

invalidates the judgment. Furthermore, his argument ignores the last sentence of the Rule, which

states that “[f]ailure to comply with the provisions of this rule does not affect the finality of the

judgment.” Id. Accordingly, we conclude Father has not shown error on the face of the record; we

overrule his third issue.

         D. Clerk’s notice of judgment under Texas Rules of Civil Procedure 306a and
            21(f)(10)

         In his fourth and final issue, Father asserts, in a single sentence, that “[t]he clerk failed to

issue notice of judgment, constituting official error [and] [s]uch omission affects the ability of the

losing party to move for a new trial and triggers due process concerns.”

         Rule 306a provides, in part, that “[w]hen the final judgment or other appealable order is

signed, the clerk of the court must immediately send the judgment or order to the parties as

provided in Rule 21(f)(10).” Tex. R. Civ. P. 306a(3). Rule 21 addresses when “the clerk must send


complaint is inadequately briefed, it presents nothing for our review. See Pedroza, 555 S.W.3d at 612; Browne v. City
of San Antonio, No. 04-11-00219-CV, 2012 WL 11756, at *5 (Tex. App.—San Antonio Jan. 4, 2012, pet. denied)
(mem. op.) (“It is not sufficient for an appellant to merely state the trial court erred and cite authority; rather, an
appellant must provide argument consisting of legal analysis of the issue.”).

                                                         10
orders, notices, and other documents to the parties electronically through an electronic filing

system approved by the Supreme Court[.]” Id. at 21(f)(10)(A). A party affected by an appealable

order may obtain an extension of the period for filing an appeal if it did not receive notice if “the

party adversely affected . . . prove[s] in the trial court, on sworn motion and notice, the date on

which the party or his attorney first either received a notice of the judgment or acquired actual

knowledge of the signing and that this date was more than twenty days after the judgment was

signed.” Id. at 306a(5).

       The record on appeal does not indicate the date on which Father or his attorney first either

received a notice of the judgment or acquired actual knowledge of the signing of the judgment. In

his brief, Father contends he “first received actual notice of the judgment on November 6, 2024[,]”

although he does not state how he received notice. As a general rule, “we do not consider factual

assertions that appear solely in briefs and are not supported by the record.” Marshall v. Hous. Auth.

of City of San Antonio, 198 S.W.3d 782, 789 (Tex. 2006); Int. of I.N.A.M., No. 08-24-00342-CV,

2026 WL 233853, at *4 (Tex. App.—El Paso Jan. 28, 2026, no pet.) (mem. op.) (same); Tex. R.

App. P. 38.1(g) (“In a civil case, the court will accept as true the facts stated unless another party

contradicts them. The statement must be supported by record references.”).

       Furthermore, we are limited to the face of the record in this restricted appeal, which does

not support Father’s contention that the “clerk failed to issue notice of judgment.” Bloom v. Bloom,

767 S.W.2d 463, 468 (Tex. App.—San Antonio 1989, writ denied) (“Since the judgment on its

face in this case is not invalid, and as the papers on file in this case do not show its invalidity, we

hold that the failure to comply with the certificate and notice provisions of Rule 239a do not

constitute reversible error in this [restricted] appeal[.]”). Because Father has not shown error on

the face of the record, we overrule his fourth issue.



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                                       V. CONCLUSION
       For the reasons stated above, we affirm the trial court’s default final order.


                                              MARIA SALAS MENDOZA, Chief Justice

April 15, 2026

Before Salas Mendoza C.J., Palafox and Soto, JJ.




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