Barnes v. Frost National Bank

PEEPLES, Justice,

concurring.

I concur in the reversal but add these additional observations about default judgments against individuals served through the Secretary of State.

In such cases the writ-of-error record must show that the Secretary of State did in fact forward the papers to the defendant; a certificate from the Secretary of State’s office stating that process was forwarded will suffice. Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex.1986); Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex.1973).

Here the certificate itself shows that while process was duly forwarded it was returned “unclaimed.” The defendant cannot thwart service by refusing certified mail. See BLS Limousine Serv. v. Buslease, Inc., 680 S.W.2d 543, 546 (Tex.App.—Dallas 1984, writ ref’d n.r.e.) (citation returned to Secretary of State with notation “refused”); TXXN, Inc. v. D/FW Steel Co., 632 S.W.2d 706, 708 (Tex.App.—Fort Worth 1982, no writ) (Secretary of State’s certificate showed “Not Deliverable As Addressed, Unable To Forward”). But there must be proof that the address to which the Secretary sent the citation was the defendants’ home address or home office. See Tex.Civ.PRac. & Rem.Code Ann. § 17.045(a) (Vernon 1986); Chaves v. Todaro, 770 S.W.2d 944, 946 (Tex.App.—Houston [1st Dist.] 1989, no writ); Verges v. Lomas & Nettleton Fin. Corp., 642 S.W.2d 820, 821-22 (Tex.App.—Dallas 1982, no writ) (last known address insufficient). An allegation in the petition can provide the needed proof. See Mahon v. Caldwell, Haddad, Skaggs, Inc., 783 S.W.2d 769, 771 (Tex.App.—Fort Worth 1990, no writ).

*751If the petition before us or other evidence in the record showed that the address to which the Secretary of State sent the suit papers was the defendants' home office or address, I would affirm the judgment even though the papers were unclaimed and not refused. Because there is no such allegation in the petition and no such proof elsewhere in the record, I concur in the reversal.