dissenting.
I respectfully dissent. In my opinion, Carolyn Jean Brown, the mother of the two children could not lawfully waive service of process ip a termination suit before the suit for termination was filed. Rule 119, Tex.R. Civ.Pro., authorizes the acceptance or waiver of issuance and service of process, but not until “after suit is brought.” Article 2224 prohibits pre-suit waivers of process. It states:
No acceptance of service and waiver of process, nor entry of appearance in open court, nor a confession of judgment shall be authorized in any case by the contract or writing sued on, or any other instrument executed prior to the institution of such suit, nor shall such acceptance or waiver be made until after suit brought.
Section 15.02(1)(K) of the Family Code provides that a parent may execute an affidavit of relinquishment before suit, but this court has not previously passed upon the validity of the provision. I would strike down the provision as a violation of basic due process.
In support of the holding that the mother could waive service of process in advance of the institution of court proceedings, the majority cites National Equipment Rental Ltd. v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11 L.Ed.2d 354 (1964). In that case suit was filed and service was obtained upon the defendant’s designated agent for service in New York. The question presented was whether under Rule 4(d)(1) of the Federal Rules of Civil Procedure, the defendant could authorize service of process on an agent in New York whom he appointed to receive process. The standing of an agent for service is not the same question as ours, whether a defendant is entitled to process served upon him or his agent after the institution of suit.
The rights of the mother and her two children when faced with a termination case have been held to be those of constitutional dimensions. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.1976); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
Courts have protected important interests by insisting that “whatever its form, opportunity that hearing must be provided before the deprivation at issue takes effect.” Even a right to change a judgment later has not been enough to satisfy the due process rule, because the subsequent suit was held to shift the burden of proof. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1964). Manzo held that the pendency of a suit and the right to be present are the things concerning which one is entitled to notice. The United States Supreme Court wrote in Armstrong v. Manzo :
It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process law. “Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they 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 v. Central Hanover Tr. Co., 339 U.S. 306, at 313 [70 S.Ct. 652, at 656, 94 L.Ed. 865]. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, 311 U.S. 457 [61 S.Ct. 339, 85 L.Ed. 278]; Grannis v. Ordean, 234 U.S. 385 [34 S.Ct. 779, 58 L.Ed. 1363]; Priest v. Las Vegas, 232 U.S. 604 [34 S.Ct. 443, 58 L.Ed. 751]; Roller v. Holly, 176 U.S. 398 [20 S.Ct. 410, 44 L.Ed. 520] . . . . ” Id. [339 U.S.], at 314 [70 S.Ct., at 657],
*396Mrs. Fuentes, a resident of Florida, complained that Firestone Tire and Rubber Company picked up her stereophonic phonograph on which there was about $200.00 still owing. She attacked the Florida statutes which permitted prejudgment replevin without notice that a prior suit had been filed. Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972). Mrs. Fuentes’ stereo was surrounded with more due process consideration than the mother and her two children in this case. The Supreme Court wrote:
For more than a century the central meaning of procedural due process has been clear: “Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Baldwin v. Hale, 1 Wall. 223, 233 [17 L.Ed. 531]. See Windsor v. Mc Veigh, 93 U.S. 274 [23 L.Ed. 914]; Hovey v. Elliott, 167 U.S. 409 [17 S.Ct. 841, 42 L.Ed. 215]; Grannis v. Ordean, 234 U.S. 385 [34 S.Ct. 779, 58 L.Ed. 1363]. It is equally fundamental that the right to notice and an opportunity to be heard “must be granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62.
* * * * * *
This is no new principle of constitutional law. The right to a prior hearing has long been recognized by this Court under the Fourteenth and Fifth Amendments. Although the Court has held that due process tolerates variances in the form of a hearing “appropriate to the nature of the ease,” Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 313 [70 S.Ct. 652, 656, 94 L.Ed. 865], and “depending upon the importance of the interests involved and the nature of the subsequent proceedings [if any],” Boddie v. Connecticut, 401 U.S. 371, 378 [91 S.Ct. 780, 786, 28 L.Ed.2d 113], the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect. E.g., Bell v. Burson, 402 U.S. 535, 542 [91 S.Ct. 1586, 1591, 29 L.Ed.2d 90]; Wisconsin v. Constantineau, 400 U.S. 433, 437 [91 S.Ct. 507, 510, 27 L.Ed.2d 515]; Goldberg v. Kelly, 397 U.S. 254 [90 S.Ct. 1011, 25 L.Ed.2d 287]; Armstrong v. Manzo, 380 U.S. [545], at 551 [85 S.Ct. 1187, at 1191, 14 L.Ed.2d 62]; Mullane v. Central Hanover Tr. Co., supra, at 313 [70 S.Ct. at 656]; Opp Cotton Mills v. Administrator, 312 U.S. 126, 152-153 [61 S.Ct. 524, 535-536, 85 L.Ed. 624]; United States v. Illinois Central R. Co., 291 U.S. 457, 463 [54 S.Ct. 471, 473, 78 L.Ed. 909]; Londoner v. City & County of Denver, 210 U.S. 373, 385-386 [28 S.Ct. 708, 713-714, 52 L.Ed. 1103],
A few states by statute have permitted the ancient legal device called cognovit by which one agrees in advance and without notice that a creditor may take judgment. Overmyer v. Frick Co., 405 U.S. 174, 178, 92 S.Ct. 775, 778, 31 L.Ed.2d 124 (1971), without approving the statute, held that decisions, in these kinds of cases require a special examination of the facts “in nearly every case.” The facts in the case were that Overmyer, a debtor, over a period of two years was beset with repeated problems. Frick Co., a contractor who was installing a refrigeration system for Over-myer, renegotiated the contract several times, granting Overmyer more time on different and favorable terms after Over-myer had defaulted. Finally Overmyer gave a new note which waived issuance and service of process upon further default. The court recognized that Overmyer’s situation was one that was of his own making. It also wrote, “This is not a case of unequal bargaining power or overreaching,” and said that its holding was not that a cognovit clause is per se violative of the Fourteenth Amendment due process, but that such a provision may “well serve a proper and useful purpose in the commercial world.” The court then expressly held that the holding is not controlling precedent for other facts of other cases. It particularly mentioned its lack of controlling precedent “where there is a great disparity of bargaining power.” One of the strong factors in the result that the Supreme Court mentioned was the Ohio practice which permits *397one to vacate an Ohio judgment upon showing of a valid defense. Overmyer had actually availed himself of a post-judgment hearing.
Carolyn Jean Brown, the eighteen-year-old mother is before this court in a direct appeal by writ of error, a form of an appeal that requires errors to appear on the face of the record. The statement of facts is a significant part of the record, but Carolyn Brown has never been able to obtain one, because none was made. That alone is sufficient grounds to reverse this cause. Rogers v. Rogers, 561 S.W.2d 172 (Tex.1978); Smith v. Smith, 544 S.W.2d 121 (Tex.1976); Robinson v. Robinson, 487 S.W.2d 713 (Tex.1972); Victory v. Hamilton, 127 Tex. 203, 91 S.W.2d 697, 700 (1936). Section 11.14(d) of the Family Code mandates: “A record shall be made in civil cases generally unless waived by the parties with the consent of the court.”
The irrevocable forfeiture of the natural parental right is one of constitutional dimension, which in this case was accomplished by a waiver that was executed before the suit for termination was filed. The holding goes beyond any precedent in Texas or elsewhere to which my attention has been called. If we were dealing with commercial rights, we would strike down as void a judgment that was rendered upon a pre-suit waiver. McAnelly v. Ward Bros., 72 Tex. 342, 343, 12 S.W. 206, 207 (1888). If we were dealing with a divorce suit, we would do the same. Been v. Kirk, 508 S.W.2d 70, 71 (Tex.1974); Faglie v. Williams, 569 S.W.2d 557, 563 (Tex.Civ.App.—Austin 1978, writ ref’d n. r. e.). Only in the instance of the parent-child relationship do we permit a judgment that in all other cases we would strike down as void.
The skimpy record before this court shows nothing that would indicate anything other than a sincere purpose by the McLen-nan County Children’s Protective Services to assist the children and the mother. The practice today approved by the majority, however, in the hands of less professional persons, could be one by which the offer of aid to an eighteen-year-old indigent mother is the quid pro quo for her irrevocable waiver. When we deal with a vehicle that is so capable of abuse, the correct rule should be that the mother and child can avail themselves of the protection of the court in which a suit is already filed. Carolyn Jean Brown has been denied the due process right to process after suit was filed, a statement of facts, and an effective appeal on the record.
I would reverse the judgments of the courts below but make the rule of this case prospective only as to other causes.
BARROW and CAMPBELL, JJ., join in this dissenting opinion.