Stephen L. Mitchell, Janie Mitchell Belew, Lisa Mitchell Seigmann, and Linda Mitchell Stapleton v. Map Resources, Inc., Pecos Bend Royalties, LLP, Pbr Properties Joint Ventures, and Tommy Vascocu

Supreme Court of Texas
══════════
No. 21-0124
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Stephen L. Mitchell, Janie Mitchell Belew, Lisa Mitchell
Seigmann, and Linda Mitchell Stapleton,
Petitioners,

v.

MAP Resources, Inc., Pecos Bend Royalties, LLP, PBR Properties
Joint Ventures, and Tommy Vascocu,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Eighth District of Texas
═══════════════════════════════════════

Argued February 22, 2022

JUSTICE BUSBY delivered the opinion of the Court.

Elizabeth S. Mitchell owned a mineral interest in property in
Reeves County, and she died in 2009. Her heirs, the petitioners, sued to
declare void a 1999 default judgment foreclosing a tax lien on Elizabeth’s
interest, alleging that she was not properly served with notice of the
underlying foreclosure suit and thus the judgment violated her
constitutional right to procedural due process. The taxing authorities
that brought the foreclosure suit served Elizabeth and almost 500 other
defendants by posting citation on the courthouse door.
Elizabeth’s heirs contend that she should have been served
personally because her name and address were available in eight
publicly recorded warranty deeds and in the county’s tax records.
Respondents, the current owners who purchased the property at a tax
sale or later acquired an interest in it, reply that those deeds and records
cannot be considered in this collateral attack on the foreclosure
judgment because they are outside the record of the underlying suit.
The trial court granted summary judgment for the current
owners, ordering that the heirs take nothing. A divided court of appeals
affirmed, holding the heirs did not conclusively establish a violation of
Elizabeth’s due process rights and declining to consider the warranty
deeds because of the bar on extrinsic evidence in collateral attacks.
There are two questions before us: (1) can information available
in relevant public records be considered in a collateral attack on a
judgment that alleges constitutional due process violations; and (2) if
those records are considered here, were Elizabeth Mitchell’s due process
rights violated in the 1999 suit? We answer both questions yes. When
public property or tax records include contact information for a
defendant that was served by publication, we hold that a court hearing
a collateral attack on a judgment on due process grounds may consider
those records. And because the deed records here featured Elizabeth’s
mailing address, we hold that serving her by posting did not comply with
procedural due process. Accordingly, we reverse the court of appeals’
judgment, render partial summary judgment for the heirs, and remand

2
the case to the trial court for further proceedings regarding certain of
the current owners’ defenses.

BACKGROUND

As the concurring justice in the court of appeals observed, “to
anyone who values property rights and due process, the facts of this case
are troubling.” 615 S.W.3d 212, 224 (Tex. App.—El Paso 2020) (Alley,
C.J., concurring). In December 1998, the Pecos-Barstow-Toyah
Independent School District, Reeves County Hospital District, and
Reeves County (collectively the Taxing Authorities) sued approximately
500 owners of more than 1600 parcels of mineral property—totaling tens
of thousands of acres—who had failed to pay their property taxes. 1 To
notify the defendants that they had been sued, the Taxing Authorities
posted citations on the door of the Reeves County Courthouse.
Citation by posting was necessary, the Taxing Authorities swore,
because not one of the 500 defendants could be located for personal
service despite the Authorities’ allegedly diligent search. Roughly one
month, two attorneys ad litem, and a five-minute bench trial later, the
court signed a default judgment foreclosing tax liens on all 1600 parcels,
including mineral interests in 320 acres owned by Elizabeth S. Mitchell
(misidentified in the defendant list as “Elizabeth A. Mitchell”). Sixteen

1 The original petition by the Taxing Authorities does not name the
defendants individually. Instead, it incorporates an attached exhibit listing
the mineral leases and their owners. The list is arranged alphabetically by
owner first name and spans 55 pages in the record. Strangely, starting on page
29 of the list, it begins to repeat itself. Every subsequent page is a duplicate
of a prior page, although the order is not the same. Our review of the first 28
pages of the list, before the entries duplicate, revealed roughly 500 unique
owners, 80 owners identified only as “unknown,” and 1600 parcels of property.

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years later, Elizabeth’s heirs brought suit to have the 1999 judgment
and subsequent sale set aside for constitutional due process violations.
A. The tax suit and 1999 foreclosure judgment
The Taxing Authorities’ original suit sought to foreclose tax liens
on mineral interests whose owners had not paid their taxes at some
point between 1978 and 1998. Several months after filing their original
petition with an attached exhibit listing all defendants and properties,
the Taxing Authorities’ attorney filed an affidavit seeking court
approval for citation by posting under Texas Rule of Civil Procedure
117a. 2 Tracking the requirements of Rule 117a, counsel said in part
that each defendant listed in the exhibit was either a nonresident,
absent from the state, or a transient person. Additionally, he said that
the names or residences of the other landowners involved in the suit
were unknown and could not be ascertained after diligent inquiry.
Counsel further swore that, for any defendants for whom a rendition
was filed in the previous five years with the appraisal district office that
showed the address of any record owner, personal service was issued to

2 Rule 117a(3) provides:
Where any defendant in a tax suit is a nonresident of the State,
or is absent from the State, or is a transient person, or the name
or the residence of any owner of any interest in any property
upon which a tax lien is sought to be foreclosed, is unknown to
the attorney requesting the issuance of process or filing the suit
for the taxing unit, and such attorney shall make affidavit that
such defendant is a nonresident of the State, or is absent from
the State, or is a transient person, or that the name or residence
of such owner is unknown and cannot be ascertained after
diligent inquiry, each such person in every such class above
mentioned, together with any and all other persons . . . may be
cited by publication.

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the rendition address. The record contains no citation or return of
attempted service on any defendant listed in the exhibit.
The court took the Taxing Authorities at their word and
authorized citation by posting. On December 17, 1998, the exhibit and
a two-page notice to defendants were provided to the Reeves County
Sheriff’s Office and posted at the county courthouse. The notice required
defendants to appear and answer the suit within 42 days, by January
31, 1999. See TEX. R. CIV. P. 114.
Also on December 17, the Taxing Authorities filed a motion to
appoint an attorney ad litem for the defendants who had not appeared
or answered. See TEX. R. CIV. P. 244. The Court appointed Roddy
Harrison, who withdrew two months later, on February 10, 1999, due to
conflicts. The next day, the court appointed a new attorney ad litem,
Jesse Gonzalez, Jr. At that time, a non-jury trial was scheduled for
February 19, 1999. Mr. Gonzalez did not receive the records for the case
until February 16, three days before trial.
The trial apparently took less than five minutes. 3 After trial, the
court signed a Statement of Evidence—to which the attorney ad litem
agreed—reciting that the court had inquired into the sufficiency of the
diligence exercised by the Taxing Authorities in attempting to discover
the whereabouts of defendants. See id. According to the statement, the
Taxing Authorities’ witness testified to a search of the public records of

3 The record indicates that six other tax delinquency suits were
scheduled for trial at the same time as the suit at issue here, each with a
different defendant or attorney ad litem. Trying all seven cases was estimated
to take thirty minutes. Assuming each case received roughly the same amount
of time, that would allow about four minutes per case.

5
the county, and that, where the records showed an address for a
defendant, “citation was issued for personal service . . . at such address
. . . but was unserved.” The court concluded that diligent inquiry had
been made and signed a default judgment foreclosing the Taxing
Authorities’ liens on the subject properties. The properties, including
Elizabeth’s mineral interests, were then sold at a sheriff’s sale.
B. The Mitchell heirs’ 2015 suit
Elizabeth’s heirs (collectively the Mitchells) filed the present suit
in 2015—five years after Elizabeth’s death and sixteen years after the
foreclosure judgment—against respondents, MAP Resources and other
current owners of the mineral interests (collectively MAP). The
Mitchells sought declarations that the foreclosure judgment was void as
to Elizabeth because she had not been properly served and thus her
federal and state constitutional rights had been violated. Specifically,
they alleged that the attorney for the Taxing Authorities gave false
testimony that Elizabeth’s address could not be ascertained after
diligent inquiry because eight warranty deeds on file in the public
records at the time of the foreclosure suit showed that Elizabeth owned
the subject property and listed a post office box where she could be
reached. 4 They contended that if the Taxing Authorities had actually
conducted the diligent inquiry they claimed, Elizabeth’s address would
have been discovered in the deed records.

4 All eight warranty deeds are included in the record before us in this
2015 suit. Each deed was filed in 1983, names Elizabeth S. Mitchell as the
grantee of the property, and lists as Elizabeth’s address “P.O. Box 428, Van
Horn, Texas 79855.”

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 The parties filed cross-motions for summary judgment in the trial
court. The Mitchells’ motion argued that the foreclosure judgment is
void as to Elizabeth and her property because the Taxing Authorities,
despite having knowledge of her address, failed to serve her in
compliance with Texas Rule of Civil Procedure 117a and thereby
violated both the United States and Texas Constitutions. Because the
judgment is void, they contended that the resulting deeds and sales of
the property are also void. 5 The Mitchells sought declaratory relief to
that effect and to quiet title to the property. As evidence, the Mitchells
provided, among other things, copies of the eight publicly recorded
warranty deeds, probate documents regarding Elizabeth’s estate, and
copies of documents from the original foreclosure suit, including the
citation by posting, statement of evidence, and default judgment.
In response to the Mitchells’ motion, MAP raised a number of
defenses, including that the Mitchells failed to comply with certain
statutory requirements in the Tax Code. Specifically, MAP argued that
the Mitchells’ claims are barred by the one-year statute of limitations
for challenging tax sales. See TEX. TAX CODE § 33.54(a). MAP also
contended that the Mitchells failed to satisfy the Tax Code’s statutory
precondition for suits challenging the validity of a tax sale, which
requires deposit of any delinquent taxes before the action may be
commenced. Id. § 34.08(a). Additionally, MAP argued that the

5After the judgment, the mineral interests were sold at a sheriff’s sale
to respondents PBR Properties Joint Ventures, Pecos Bend Royalties, Inc., and
Tommy Vascocu, who received a sheriff’s deed. That interest was subsequently
conveyed in part to MAP Resources via quitclaim deed. The Mitchells seek to
have both the sheriff’s and quitclaim deeds declared void.

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Mitchells could not collaterally attack the tax judgment because the
statement of evidence established that Elizabeth was properly served,
and the Mitchells improperly sought to introduce the warranty deeds
despite the bar on extrinsic evidence. Finally, MAP argued that the
Mitchells’ claims were barred by laches because they unreasonably
delayed bringing suit.
MAP also filed its own hybrid motion for summary judgment. 6 Its
motion raised many of the same grounds it argued in response to the
Mitchells’ motion for summary judgment, with the exception of its laches
defense. MAP argued in its motion that the Mitchells’ claims failed
because they did not file within the statutory limitations period or
comply with statutory procedure for challenging a tax sale. It also
contended that the Mitchells’ attempt to attack the judgment

6 Motions for traditional summary judgment under Rules 166a(a) or (b)
may be combined with Rule 166a(i) no-evidence motions in “hybrid” motions
for summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004);
see also City of Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 299
(Tex. 2017) (per curiam). If a party has the burden of proof on claims or
defenses, however, it cannot use a no-evidence motion to establish those claims
or defenses. See TEX. R. CIV. P. 166a(i); Nowak v. DAS Inv. Corp., 110 S.W.3d
677, 680 (Tex. App.—Houston [14th Dist.] 2003, no pet.). MAP’s motion sought
summary judgment on the grounds that the statutory limitations period in the
Tax Code had run, that the Mitchells provided no evidence that the tolling
provision of the statute had been triggered, and that the Mitchells’ suit was an
improper collateral attack. MAP’s claim that the Mitchells failed to provide
evidence that the Tax Code’s tolling provision applied can properly be decided
in a no-evidence motion because the Mitchells would have the burden of
proving tolling at trial. See Draughon v. Johnson, 631 S.W.3d 81, 85 (Tex. 2021)
(“If a defendant prefers to place the burden on the plaintiff to raise a fact issue
regarding any aspects of limitations on which the plaintiff would have the
burden at trial, it is free to file a no-evidence motion for summary judgment as
to those matters.”). Given our disposition, however, we do not reach the tolling
issue.

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collaterally was impermissible because they could not demonstrate that
the judgment was void on its face. As evidence, MAP provided copies of
the record from the foreclosure suit, the sheriff’s tax deed to PBR
Properties Joint Venture, Pecos Bend Royalties, Inc., and Tommy
Vascocu, and the quitclaim deed from those parties to MAP Resources.
In response to MAP’s motion, the Mitchells contended that MAP’s
argument improperly elevates the statutory requirements of the Tax
Code over constitutionally mandated due process rights. In their view,
accepting MAP’s position would essentially foreclose any collateral
attack on a judgment where service was constitutionally inadequate.
The Mitchells argued they were not barred from bringing their collateral
attack because constitutional due process rights trump statutory
requirements.
Following a hearing, the trial court granted MAP’s motion for
summary judgment and denied the Mitchells’ motion. The court
rendered judgment for MAP and the other defendants and ordered a
take-nothing judgment on the Mitchells’ claims. The Mitchells
appealed.
C. The court of appeals’ opinions
The court of appeals affirmed, holding that the Mitchells had not
established as a matter of law that the trial court lacked personal
jurisdiction over Elizabeth. 615 S.W.3d at 223 (plurality opinion). Each
of the three panel members wrote a separate opinion. Justice Palafox
wrote a plurality opinion holding that although a judgment may be
collaterally attacked on the ground that the court did not acquire
personal jurisdiction over the defendant in compliance with due process,

9
the record in this case does not conclusively establish that no attempt
was made by the Taxing Authorities to personally serve Elizabeth. Id.
at 222.
Chief Justice Alley concurred. He concluded that although the
record established a due process violation under Mullane v. Central
Hanover Bank & Trust Co., 339 U.S. 306 (1950), and Mennonite Board
of Missions v. Adams, 462 U.S. 791 (1983), the plurality’s outcome was
correct in light of Texas precedent barring consideration of extrinsic
evidence. He encouraged a reexamination of this precedent, including a
possible exception “when a judgment is based on an express
representation that a party performed a diligent review of public records
to support an alternative form of service.” Id. at 224 (Alley, C.J.,
concurring).
Justice Rodriguez dissented, arguing that due process rights
should always trump a state statute or evidentiary rule. Because the
warranty deeds in the public record created serious doubts that a
diligent search for Elizabeth’s whereabouts had actually been
conducted, she would have set aside the judgment for complete lack of
service. Id. at 237 (Rodriguez, J., dissenting). As explained below, we
agree in part with both the concurrence and the dissent.
The Mitchells filed a petition for review, which we granted. We
review the trial court’s rulings on the parties’ cross-motions for
summary judgment de novo, considering both sides’ summary judgment
evidence and determining all questions presented. FM Props. Operating
Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

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 ANALYSIS

I. In a collateral attack on a default judgment, contact
information available in deed and tax records may be
considered in deciding whether service by posting
satisfied due process.

The Mitchells contend that the default foreclosure judgment
should be declared void because Elizabeth was not personally served in
compliance with constitutional due process requirements, and thus the
court did not acquire personal jurisdiction over her. See PNS Stores,
Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012) (holding that “a judgment
may . . . be challenged [as void] through a collateral attack when a
failure to establish personal jurisdiction violates due process”). The
parties’ principal dispute concerns what evidence a court may consider
in deciding whether Elizabeth was properly served by posting. To place
this dispute in context, we begin by discussing the service requirements
of the Constitution and our rules.
Texas Rule of Civil Procedure 117a governs the service of citation
on defendants in suits for delinquent ad valorem taxes. To justify
citation by publication or posting when a defendant is a nonresident of
or absent from the state, or its name is unknown to the attorney
requesting issuance of process, the attorney must aver that the
defendant is absent, transient, or that its name and residence “cannot
be ascertained after diligent inquiry.” TEX. R. CIV. P. 117a(3). The
“diligent inquiry” requirement of Rule 117a incorporates the
requirements of constitutional due process.
The Due Process Clause of the United States Constitution
prevents the government from depriving a person of his or her “property,

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without due process of law.” U.S. CONST. amend. XIV, § 1; see also TEX.
CONST. art. I, § 19 (“No citizen of this State shall be deprived of . . .
property . . . except by the due course of the law of the land.”). 7 It is well
settled that these words “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, 339 U.S. at 313.
Notice must be “reasonably calculated, under the circumstances, to
apprise interested parties of the pendency of the action and afford them
the opportunity to present their objections.” Peralta v. Heights Med.
Ctr., Inc., 485 U.S. 80, 84 (1988) (quoting Mullane, 339 U.S. at 314). 8
In Mullane, the Supreme Court of the United States explained
that “when notice is a person’s due, process which is a mere gesture is
not due process. The means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish
it.” 339 U.S. at 315. The reasonableness of any chosen method of

7This Court has held that the federal Due Process Clause and the Texas
Constitution’s Due Course of Law clause are, for the most part, coextensive.
See Patel v. Tex. Dep’t of Licensing & Regul., 469 S.W.3d 69, 86 (Tex. 2015).
The parties have not identified any differences in text or application that are
relevant to the issues raised here, so we treat the requirements of both
Constitutions as identical for purposes of this opinion.
8 See also Cunningham v. Parkdale Bank, 660 S.W.2d 810, 813 (Tex.
1983) (“[P]rocedural due process ‘requires notice that is reasonably calculated
to inform parties of proceedings which may directly and adversely affect their
legally protected interests.’” (quoting City of Waco v. Roddey, 613 S.W.2d 360,
365 (Tex. App.—Waco 1981, writ dism’d))); Hamm v. Robinson, 314 S.W.3d
204, 209 (Tex. App.—El Paso 2010, no pet.) (“As an elementary and
fundamental requirement, our system of justice comprehends due process to
include notice and an opportunity to be heard by interested parties to the
action.”).

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providing notice, and hence its constitutionality, “may be defended on
the ground that it is in itself reasonably certain to inform those affected,
or, where conditions do not reasonably permit such notice, that the form
chosen is not substantially less likely to bring home notice than other of
the feasible and customary substitutes.” Id. (citations omitted).
This Court echoed Mullane in Anderson v. Collum, a case
concerning the validity of service by publication under Rule 117a. 514
S.W.2d 230 (Tex. 1974). We held that where property owners were
residents and could have been found with diligent inquiry, and where
the state’s affidavit for citation by publication alleged only that the
owner was a nonresident or person whose residence was unknown, the
tax sale should be set aside. Id. at 230–31. “[T]he failure to comply with
[Rule 117a], and the admitted lack of diligence to locate the defendants
renders the service by publication ineffective.” Id. at 231; see also
Sgitcovich v. Sgitcovich, 241 S.W.2d 142, 147 (Tex. 1951).
We have not considered service under Rule 117a since Anderson,
but when we have discussed the requirement of diligent inquiry as it
relates to citation by publication, we have done so with reference to the
due process considerations outlined in Mullane. See In re E.R., 385
S.W.3d 552, 558–60, 565 (Tex. 2012) (“Sending a few faxes, checking
websites, and making three phone calls . . . is not the type of diligent
inquiry required before the [State] may dispense with actual service . . . .
Mullane authorized service by publication when it is not reasonably
possible or practicable to give more adequate warning.” (internal
quotation marks omitted)). Rule 117a’s requirement of a diligent
inquiry into the whereabouts of a defendant in a tax foreclosure suit

13
ensures that a party seeking to serve a defendant by publication or
posting has provided process that is more than a mere gesture.
A diligent inquiry by a person who actually desires to find a
defendant in a tax suit includes a search of public property and tax
records. Following Mullane, the Supreme Court has consistently held
that when an unknown defendant can be identified or a known
defendant’s address can be ascertained from publicly recorded
instruments, notice by posting or publication is insufficient to satisfy
due process. In Walker v. City of Hutchinson, the Court held that notice
of condemnation proceedings published in a local newspaper was an
inadequate means of informing a landowner whose name was known to
the city and was on its official records. 352 U.S. 112, 116 (1956).
“[T]here seem to be no compelling or even persuasive reasons,” the Court
wrote, “why such direct notice cannot be given.” Id. A few years later,
in Schroeder v. City of New York, the Court reaffirmed that publication
in newspapers and posted notices was inadequate to apprise a property
owner of condemnation proceedings when his name and address were
ascertainable from deed records and tax rolls. 371 U.S. 208, 210–11
(1962).
The Court returned to this issue twenty years later in Mennonite
Board of Missions v. Adams, addressing whether notice by publication
and posting provided a mortgagee of real property with adequate notice
of a nonjudicial proceeding to sell the mortgaged property to recover
delinquent taxes. 462 U.S. at792. The Court held that a mortgagee has
a legally protected property interest and is therefore entitled to notice
that is reasonably calculated to apprise her of an impending tax sale.

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Id. at 798. Further, when a mortgagee is identifiable through an
instrument “that is publicly recorded, constructive notice by publication
must be supplemented by notice mailed to the mortgagee’s last known
available address, or by personal service.” Id. “Personal service or
mailed notice is required even though sophisticated [defendants] have
means at their disposal to discover whether property taxes have not
been paid and whether tax sale proceedings are likely to be initiated.”
Id. at 799. Only when a mortgagee is “not reasonably identifiable” does
constructive notice alone satisfy the requirements of Mullane. Id. at
798.
In light of these principles, we likewise hold that citation by
publication or posting violates due process when the address of a known
defendant is readily ascertainable from public records that someone who
actually wants to find the defendant would search. See E.R., 385 S.W.3d
at 564 (explaining that reasonable search “must extend to places where
information is likely to be obtained and to persons who, in the ordinary
course of events, would be likely to have information of the person or
entity sought” (quoting In re S.P., 672 N.W.2d 842, 846 (Iowa 2003))).
Here, the default judgment and the Taxing Authorities’ testimony in the
foreclosure suit refer to the county’s public records, including the deed
records. Those records show that if the “diligent inquiry” required by
the Constitution and Rule 117a had been performed by a person actually
desirous of locating Elizabeth Mitchell, he would have discovered her
correct name and post office box in the deed records.
MAP responds that the warranty deeds listing Elizabeth S.
Mitchell’s name and address cannot be considered under our precedent

15
because they are extrinsic to the record of the underlying foreclosure
suit. MAP is correct that, as a general rule, extrinsic evidence cannot
be considered in a collateral attack to set aside a final judgment. See
Templeton v. Ferguson, 33 S.W. 329, 332–33 (Tex. 1895); Crawford v.
McDonald, 33 S.W. 325, 328 (Tex. 1895). But this rule does not extend
to cases over which a court “has not, under the very law of its creation,
any possible power.” Templeton, 33 S.W. at 332. In York v. State, we
observed that the law of Texas courts’ creation includes the United
States Constitution. 373 S.W.3d 32, 42 (Tex. 2012); see also Burnham
v. Superior Court, 495 U.S. 604, 608–09 (1990) (invoking principle of
coram non judice in determining validity of judgment challenged for
alleged lack of personal jurisdiction).
As explained, the Constitution requires a diligent inquiry into a
defendant’s whereabouts, including a search of public deed and tax
records for the defendant’s address. Moreover, the concerns that
animate this and other courts’ application of the bar on extrinsic
evidence—such as fraud, manipulation, and fading memories 9—are
inapplicable to such records. The authenticity of the deed and tax
records is not in question here.
Because the Constitution and Rule 117a require a plaintiff to
consult public deed and tax records as part of its diligent inquiry when

9 “To permit impeachment of a judgment by extrinsic evidence opens
the possibility of fraudulent avoidance of judgments, for example by a claim
that process was not actually served. The testimony of a person making such
a claim often cannot be contradicted, because the memory of other possible
witnesses has faded by the time the claim is litigated.” RESTATEMENT
(SECOND) OF JUDGMENTS § 77 cmt. b (1982).

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a defendant’s name or residence is unknown, the contents of those
records should be regarded as part of the record of the suit rather than
as extrinsic evidence. We therefore hold that when such public records
contain the address of a defendant served by publication or posting, a
court hearing a collateral attack on a judgment may consider that
evidence in deciding whether service complied with the constitutional
demands of due process.

II. Consideration of the deed records demonstrates that
serving the defendant by posting did not comply with
procedural due process.

Having defined the scope of the record, we next consider whether
it establishes a jurisdictional defect. See PNS Stores, 379 S.W.3d at 273.
Although a judgment attacked collaterally is presumed valid, that
presumption disappears when the record “exposes such personal
jurisdictional deficiencies as to violate due process.” Id.
Here, the record shows that the Taxing Authorities did not
comply with Rule 117a or the requirements of due process. As explained
above, due process requires notice that is reasonably calculated to
apprise parties of the pendency of an action. Personal service of written
notice is always adequate, but notice by publication must be scrutinized
because “chance alone” brings a resident’s attention to a notice
published in a newspaper or posted on a courthouse door. Mullane, 339
U.S. at 315. Thus, notice by publication is not enough with respect to a
person whose name or address is easily ascertainable; such persons
should be served personally. Schroeder, 371 U.S. at 212–13; Sgitcovich,
241 S.W.2d at 147.

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 There is no evidence that personal service on Elizabeth was ever
attempted. The record of the underlying tax foreclosure suit does
contain a statement of evidence as required by Texas Rule of Civil
Procedure 244. 10 The statement recites that where the Taxing
Authorities’ search of public records showed the address of any
defendant, “citation was issued for personal service . . . at such address
. . . but was unserved.” But the statement does not address whether an
attempt was made to serve the issued citation, and the record contains
no citation or return reflecting attempted personal service on any of the
500 defendants, including Elizabeth.
The parties dispute whether our Rules of Civil Procedure required
that records of attempted personal service be filed with the court in
1999, at the time of the foreclosure suit. The version of Rule 107—
entitled “Return of Service”—then in effect provided: “The return of the
officer or authorized person executing the citation shall be endorsed on

10 MAP argues that the Mitchells have not produced a complete record
of the foreclosure suit and that this failure is fatal to their collateral attack.
Specifically, MAP points out that the Mitchells failed to produce a transcript
of the testimony of the attorney for the Taxing Authorities that he diligently
searched for but could not ascertain the defendants’ whereabouts. We find this
argument unpersuasive. As the Mitchells point out, the trial court in this suit
took judicial notice of the record of the foreclosure suit. Moreover, it is unclear
that a reporter’s record was taken of the brief default trial in the foreclosure
suit. Court reporters are not required to transcribe court proceedings unless a
party requests it, see TEX. GOV’T CODE § 52.046(a), which Elizabeth could not
do because she was not present. Even if a transcript was taken in 1999, court
reporters are only required to preserve their notes for three years. Id. §
52.046(a)(4). This potential unavailability of transcripts is precisely why Rule
244 requires a statement of evidence. The statement creates a record of the
evidence supporting a default judgment arising from notice by publication or
posting. We conclude that parties may rely on that statement in lieu of a
transcript.

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or attached to the same; it shall state when the citation was served and
the manner of service and be signed by the officer officially or by the
authorized person.” TEX. R. CIV. P. 107 (1990, amended 2011). It further
provided that “when the officer or authorized person has not served the
citation, the return shall show the diligence used by the officer or
authorized person to execute the same and the cause of failure to execute
it, and where the defendant is to be found, if he can ascertain.” Id. In
addition, Rule 25 required then (and requires now) that the clerk’s file
show, “in brief form, the officer’s return on the process.” TEX. R. CIV. P.
25. 11
Thus, if the Taxing Authorities had attempted to serve Elizabeth
personally in compliance with our rules, the record of the underlying tax
foreclosure suit should reflect it. It does not. 12
MAP argues that the absence of citations in the record cannot be
treated as affirmative proof that the Taxing Authorities did not attempt

11The parties also dispute the relevance and applicability of Rule 99.
Currently, Rule 99 requires that the clerk retain a copy of citation in the court’s
file. TEX. R. CIV. P. 99. In 1999, Rule 99 did not have this requirement. Given
that Rule 107 (both now and in 1999) requires retention of copies of the return,
however, consideration of Rule 99 is unnecessary to resolve the issue.
12We have held that it is “the established law of this State that it is
imperative and essential that the record affirmatively show a strict compliance
with the provided mode of service.” McKanna v. Edgar, 388 S.W.2d 927, 929
(Tex. 1965). Specifically, we have held that a failure to comply with the
requirements of Rule 107 renders a default judgment invalid. Hubicki v.
Festina, 226 S.W.3d 405, 408 (Tex. 2007) (per curiam). In Hubicki, we held
that the respondent’s failure to establish return of service in compliance with
the requirements of Rule 107 rendered service ineffective. Id. “Under these
circumstances, as a matter of law, Festina failed to establish that alternative
service . . . was reasonably calculated to provide Hubicki with notice of the
proceedings.” Id.

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personal service. We have noted that “unless the party contesting
service presents a preponderance of evidence to the contrary—for
example, the party’s testimony along with corroborating facts or
circumstances—the officer’s return of service is sufficient proof that the
citation and petition were properly served.” State v. Bristol Hotel Asset
Co., 65 S.W.3d 638, 648 (Tex. 2001). Citations are also treated as
presumptive evidence of service, unless the party challenging service
carries its burden of showing, by a preponderance of the evidence, that
service was not effected. Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972).
These principles do not apply here, however, because no citation or
return for Elizabeth appears in the record.
Because Elizabeth was not personally served, constitutional
principles of due process and Rule 117a required the Taxing Authorities
to conduct a diligent inquiry regarding her residence before serving her
by posting. See supra Part I. The statement of evidence reflects the
testimony of the Taxing Authorities’ counsel that public records were
searched for the defendants’ addresses, and counsel stated in his
affidavit that the names and residences of the defendant owners being
served by publication could not be ascertained after diligent inquiry.
But the assertion that not one of the approximately 500 defendants had
an identifiable address strains credulity. And the recorded warranty
deeds bearing Elizabeth’s post office box address reveal that, as to her,
the Taxing Authorities either did not complete the diligent records
search they claimed or did not act on its results. Thus, the recitation in
the judgment that the Taxing Authorities exercised diligence “rings

20
hollow,” as Chief Justice Alley observed. 615 S.W.3d at 230 (Alley, C.J.,
concurring).
MAP argues that a post office box is not a “residence,” so “proof
that the taxing entities were aware of [Elizabeth’s] P.O. Box does not
negate their lawyers’ statement that her residence was unknown, which
is all Rule 117a requires for citation by publication.” This argument is
beside the point. “[O]ne desirous of actually informing” Elizabeth of the
suit could simply have sent notice to her post office box. Mullane, 339
U.S. at 315. There is no evidence that the Taxing Authorities did so
here.
When the record underlying the tax foreclosure judgment,
including the eight warranty deeds, is considered in its entirety, it
demonstrates that the Taxing Authorities’ service of Elizabeth by
posting was insufficient to satisfy the requirements of due process.
Consequently, we hold that the court handling the tax foreclosure suit
did not have personal jurisdiction over Elizabeth. See PNS Stores, 379
S.W.3d at 273 (holding that the “record affirmatively demonstrates a
jurisdictional defect sufficient to void a judgment when it . . . exposes
such personal jurisdictional deficiencies as to violate due process”). 13

13MAP argues that, as in PNS Stores, any defect in service on Elizabeth
was “merely technical.” We disagree. The defendant in PNS Stores was
personally served; the defects involved failures to comply with all of the
requirements of Rules 106 and 107, including, among other things, failure to
list the exact time service was performed and failure to state that PNS was
served through its registered agent. 379 S.W.3d at 273–74. Here, as explained
above, there is no evidence that Elizabeth was personally served.

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III. None of MAP’s counterarguments or defenses that are
properly presented provide a basis for affirming the
summary judgment.

MAP contends that even if the foreclosure judgment violated due
process, that judgment should not be declared void given the various
other counterarguments and defenses it raised below. These include
that the Mitchells’ suit is barred by the Tax Code’s statute of limitations
and that the Mitchells failed to satisfy the Tax Code’s preconditions for
bringing suit to challenge a tax judgment. We address each of these
arguments in turn.
The Tax Code provides that an action relating to title to property
may not be maintained against the purchaser of the property at a tax
sale unless the action is commenced “before the first anniversary of the
date that the deed executed to the purchaser at the tax sale is filed of
record.” TEX. TAX CODE § 33.54(a)(1). The one-year limitation is
inapplicable if a party is not served with citation in the suit to foreclose
the tax lien and continues to pay taxes on the property in question
during the limitations period and until the commencement of the action
challenging the validity of the tax sale. Id. § 33.54(b).
For several reasons, the statute of limitations does not bar the
Mitchells’ suit here. First, state statutory requirements must give way
to constitutional protections. E.R., 385 S.W.3d at 566 (Texas rules
“must yield to contrary precedent from the U.S. Supreme Court”). The
Taxing Authorities’ failure to conduct a diligent inquiry into the county
records means that their service of Elizabeth by publication violated due
process, which is sufficient to void a judgment. See PNS Stores, 379
S.W.3d at 273. As we explained in E.R., “[a] complete failure of service

22
deprives a litigant of due process and a trial court of personal
jurisdiction; the resulting judgment is void and may be challenged at
any time.” 385 S.W.3d at 566.
Second, a statute of limitations “cannot place a temporal limit on
a challenge to a void judgment filed by a defendant who did not receive
the type of notice to which she was constitutionally entitled.” Id. “‘[A]
judgment entered without notice or service is constitutionally infirm,’
and some form of attack must be available when defects in personal
jurisdiction violate due process.” PNS Stores, 379 S.W.3d at 272–73
(quoting Peralta, 485 U.S. at 84). Thus, in Walker v. City of Hutchinson,
the Supreme Court of the United States upheld the petitioner’s due
process challenge to a condemnation judgment based on insufficient
notice even though it was brought outside the thirty-day window for
appealing eminent domain awards provided by state statute. 352 U.S.
at 114.
Applying these principles to the Texas Tax Code, the U.S. District
Court for the Southern District of Texas has held that section 33.54’s
limitations period did not bar a mortgagee’s quiet-title suit. See Ocwen
Loan Servicing, LLC v. Gonzalez Fin. Holdings, Inc., 77 F. Supp. 3d 584,
594 (S.D. Tex. 2015). Relying on Mennonite and E.R., the district court
concluded that a nonjudicial tax foreclosure and sale was void because
the mortgagee had not received constitutionally adequate notice, and
therefore its suit was not subject to the limitations period in the Tax
Code. Id. The court echoed the Supreme Court’s observation in Peralta
that “[w]here a person has been deprived of property in a manner
contrary to the most basic tenets of due process, . . . only wip[ing] the

23
slate clean . . . would . . . restore[] the petitioner to the position he would
have occupied had due process of law been accorded to him in the first
place.” Id. at 592 (quoting Peralta, 485 U.S. at 86–87).
Finally, although MAP is correct that neither Elizabeth nor her
heirs have triggered the statute’s tolling provision, that fact is irrelevant
because the Mitchells’ suit is a “proper collateral attack, independent of
the Tax Code, based on a violation of its due process rights that
render[ed] the tax judgment and tax sale void.” Sec. State Bank & Tr.
v. Bexar County, 397 S.W.3d 715, 724 (Tex. App.—San Antonio 2012,
pet. denied).
MAP next argues that this suit is barred by the Tax Code’s
requirement that “[a] person may not commence an action that
challenges the validity of a tax sale under [Chapter 34] unless the
person: (1) deposits into the registry of the court an amount equal to the
amount of delinquent taxes, penalties, and interest specified in the
judgment of foreclosure . . . plus all costs of the tax sale, or (2) files an
affidavit of inability to pay.” TEX. TAX CODE § 34.08(a). Requiring a
deposit before a tax sale may be challenged is a reasonable method of
deterring frivolous claims. But the Legislature’s legitimate interest in
collecting taxes and preventing meritless challenges to tax suits must
accommodate a property owner’s constitutional right to due process,
which we have held was violated here.
The Mitchells argue that section 34.08 does not bar a collateral
attack based on constitutionally infirm notice. Our courts of appeals

24
have divided on this question. 14 We conclude that a due process
violation occurring after an owner fails to pay taxes on its property does
not excuse the owner from having to deposit those taxes in order to
pursue a suit to recover the property. On the other hand, an owner
deprived of due process is entitled to notice of the amount to be deposited
and an opportunity to make the deposit or file an affidavit before its suit
is dismissed. Cf. John K. Harrison Holdings, LLC v. Strauss, 221
S.W.3d 785, 789 (Tex. App.—Beaumont 2007, pet. denied) (holding that
defendant’s challenge to tax sale was barred by section 34.08 because
court provided him an opportunity to satisfy the deposit requirement
and he did not do so). Because MAP’s summary judgment evidence does
not conclusively establish the amount of the required deposit (including
any costs of sale) and that the Mitchells failed to deposit that amount

14 Some courts have rejected the argument that section 34.08’s
prerequisites are inapplicable to a collateral attack based on a lack of due
process. E.g., Avni v. JPAD Holdings, LLC, No. 4:18-CV-3119, 2020 WL
10762198, at *4 (S.D. Tex. Mar. 30, 2020) (granting summary judgment on
ground that plaintiff challenging tax foreclosure failed to satisfy section 34.08’s
prerequisites); Roberts v. T.P. Three Enters., Inc., 321 S.W.3d 674, 677 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied) (“Having failed to comply with
[section 34.08], appellants were barred from commencing their action
challenging the validity of the tax sale.”). But other courts considering the
relationship between section 34.08’s requirements and due process challenges
have indicated that a failure to satisfy 34.08 does not bar a challenge based on
insufficient notice. Sec. State Bank, 397 S.W.3d at 722–23 (holding that a
lienholder’s failure to comply with section 34.08 did not preclude it from
challenging a tax sale because the record established a “complete lack of notice”
violative of due process); cf. Am. Homeowner Pres. Fund, LP v. Pirkle, 475
S.W.3d 507, 525 (Tex. App.—Fort Worth 2015, pet. denied) (holding that
party’s failure to comply with 34.08 was inexcusable because “at no point in
this series of circumstances was [it] ever deprived of a due process right, i.e.,
the opportunity to avail itself of statutory remedies to challenge the sale”).

25
when given the opportunity, we cannot affirm the summary judgment
for MAP based on section 34.08. This issue remains open for further
consideration on remand.
Finally, we cannot resolve MAP’s laches defense in this appeal.
MAP did not raise its laches defense in its motion for summary
judgment, but only in its response to the Mitchells’ motion for summary
judgment. Nor did the Mitchells move for summary judgment against
MAP on laches. Thus, in granting MAP’s motion for summary
judgment, the trial court did not address MAP’s laches defense.
A motion for summary judgment must “state the specific grounds
therefor,” and “[i]ssues not expressly presented to the trial court by
written motion, answer or other response shall not be considered on
appeal as grounds for reversal.” TEX. R. CIV. P. 166a(c). In an appeal
from a summary judgment, issues to be reviewed by the appellate court
must have been actually presented to and considered by the trial court.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 675–77
(Tex. 1979). A summary judgment cannot be affirmed on a ground not
specifically presented in the motion. Travis v. City of Mesquite, 830
S.W.2d 94, 99–100 (Tex. 1992). Thus, the laches defense also remains
open for further consideration on remand.
Although we take no position on whether laches or any other
equitable doctrine can provide a valid defense to a notice-based
collateral attack on a judgment transferring property, we note that our
holding above regarding limitations does not necessarily resolve the
issue. In E.R., which addressed a judgment terminating parental rights,
we held that “the statute’s time limits cannot foreclose an attack by a

26
parent who was deprived of constitutionally adequate notice.” 385
S.W.3d at 567. Rather, “[a] void judgment . . . can be collaterally
attacked at any time.” PNS Stores, 379 S.W.3d at 272. Many
jurisdictions have applied this principle to conclude that laches does not
generally provide a basis for refusing relief from a void default
judgment.15
Yet E.R. also concluded that “[i]f, after learning that a judgment
has terminated her rights, a parent unreasonably stands mute, and
granting relief from the judgment would impair another party’s
substantial reliance interest, the trial court has discretion to deny

15 See, e.g., Jackson v. FIE Corp., 302 F.3d 515, 523 (5th Cir. 2002);
United States v. One Toshiba Color Television, 213 F.3d 147, 157 (3d Cir. 2000)
(“[N]early overwhelming authority exists for the proposition that there are no
time limits with regards to a challenge to a void judgment because of its status
as a nullity; thus laches is no bar to recourse . . . .”); Katter v. Ark. La. Gas Co.,
765 F.2d 730, 734 (8th Cir. 1985); Raymond v. Raymond, 36 S.W.3d 733, 738
(Ark. 2001) (holding laches defense was misplaced because decree was void ab
initio, so “the trial court had no jurisdiction or authority to hear the cases in
the first place”); County of San Diego v. Gorham, 186 Cal. App. 4th 1215, 1229
(Cal. Ct. App. 2010) (observing that “neither laches nor the ordinary statute of
limitation may be invoked as a defense against an action or proceeding to
vacate . . . a judgment or order” void due to failure of service); Michels v.
Clemens, 342 P.2d 693, 698 (Colo. 1959) (“A void judgment is vulnerable to a
direct or collateral attack regardless of the lapse of time.” (quoting Davidson
Chevrolet, Inc. v. City & Cnty. of Denver, 330 P.2d 1116, 1118 (Colo. 1958))); In
re Adoption of D.C., 887 N.E.2d 950, 955 (Ind. Ct. App. 2008) (“[D]ue process
protections mandate that there be no time limitations for such a fundamental
challenge.” (citing Stidham v. Whelchel, 698 N.E.2d 1152, 1154–56 (Ind.
1998))); In re Last Will & Testament of Welch v. Welch, 493 P.3d 400, 414 (N.M.
Ct. App. 2020) (“A judgment which is void is subject to direct or collateral
attack at any time.” (quoting In re Estate of Baca, 621 P.2d 511, 513 (N.M.
1980))); Altman v. Parker, 123 N.E.3d 382, 384 (Ohio Ct. App. 2018) (“Laches
. . . does not bar a movant seeking relief from a void judgment. The law is well
settled that a void judgment is a nullity that may be attacked at any time.”
(citation omitted)); RESTATEMENT (SECOND) OF JUDGMENTS § 65 cmt. b.

27
relief.” 385 S.W.3d at 569 (citing RESTATEMENT (SECOND) OF JUDGMENTS
§ 66); see id. at 568 n.30 (collecting cases from other states holding that
laches can prevent party from challenging adoption decree). Other
states and federal jurisdictions have reached similar conclusions in both
adoption and non-adoption contexts.16 We noted in E.R., however, that
“a judgment debtor’s post-judgment diligence may be irrelevant in cases
involving a default judgment for money damages.” Id. at 569.
This case differs from E.R. in that the default judgment transfers
real property rather than terminating the parent-child relationship or
awarding money damages. In addition, the parties bringing the
collateral attack here are the heirs of the person deprived of due process.
The record is devoid of information regarding how and when they
learned of the judgment. On remand, the parties are free to address
these legal authorities, identify other relevant authorities for the trial
court to consider, and offer evidence of any facts and circumstances
relevant to MAP’s laches defense.

16 See, e.g., Stansell v. Revolutionary Armed Forces of Colombia, 771
F.3d 713, 737 (11th Cir. 2014) (holding that although motion to set aside
judgment for voidness is generally not subject to a typical laches analysis,
“there are limitations on this doctrine . . . [including] that objections to
personal jurisdiction (unlike subject matter jurisdiction) are generally
waivable” (quoting In re Worldwide Web Sys., Inc., 328 F.3d 1291, 1299 (11th
Cir. 2003))); Abernathy v. Mitchell, 406 So. 2d 862, 864 (Ala. 1981); Abushmais
v. Erby, 652 S.E.2d 549, 552 (Ga. 2007) (“That is not to say . . . that there is no
defense available to an equitable attack on a void judgment.” (first citing
Howington v. Howington, 637 S.E.2d 389 (Ga. 2006); then citing Watson v.
Watson, 218 S.E.2d 863 (Ga. 1975))); cf. Katter, 765 F.2d at 734 (noting that
the principles of Restatement section 66 are “essentially equivalent to those of
equitable estoppel”).

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 CONCLUSION

Because the Mitchells have established that Elizabeth was not
properly served in the 1999 suit and that sections 33.54 and 34.08 of the
Tax Code are inapplicable, and MAP has not established any of the
grounds on which it moved for summary judgment, we reverse the court
of appeals’ judgment for MAP. But we cannot render final summary
judgment for the Mitchells because MAP’s issue regarding the deposit
requirement of the Tax Code and its laches defense remain unresolved.
We therefore render partial summary judgment that the court hearing
the tax foreclosure suit did not acquire personal jurisdiction over
Elizabeth because she was not served in compliance with Rule 117a and
the requirements of due process, and we remand the case to the trial
court for further proceedings.

J. Brett Busby
Justice

OPINION DELIVERED: May 13, 2022

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