No-Service Bill of Review Requires Proof | Theriot v. Scallion (2026)

Theriot v. Scallion, 14-25-00267-CV, November 03, 2026.

On appeal from 246th District Court, Harris County, Texas

Synopsis

A bill-of-review plaintiff invoking due process based on lack of service must prove actual nonservice; alleging defects in the citation is not enough. When the record contains a facially valid citation and return, the plaintiff’s uncorroborated testimony does not overcome the presumption of valid service.

Relevance to Family Law

Default orders are common in divorce, SAPCR, child-support, custody-modification, enforcement, and post-divorce proceedings. Theriot confirms that a party seeking to set aside a final family-law judgment after ordinary post-judgment deadlines have expired must build an evidentiary record—not merely allege that service was invalid. The distinction between complete nonservice and a technical defect is critical: complete nonservice may excuse proof of a meritorious defense and opposing-party misconduct, but a technical objection to a citation generally does not establish a due-process violation. Counsel defending a default judgment should preserve the citation, return, clerk’s records, and any corroborating delivery evidence; counsel attacking one should obtain independent evidence demonstrating that service did not occur.

Case Summary

Fact Summary

In 2015, the trial court signed an agreed child-support order bearing Ashton Aaron Theriot’s signature. Subsequent proceedings produced a March 2020 support order and, in April 2023, a default order modifying child support and confirming a medical-support arrearage. The 2023 order increased Theriot’s monthly child-support obligation to $900, awarded a judgment for the medical-support arrearage, and recited that Theriot had been duly notified but failed to appear.

In October 2024, Theriot filed a petition for bill of review seeking to set aside the 2023 modification order. He asserted lack of service and several constitutional and jurisdictional theories. Among other documents, he attached an affidavit stating that he had not received valid service and had not signed a return receipt, as well as a copy of the citation reflecting service at his last known address.

Theriot’s principal service complaint was not that no citation had reached him, but that the citation was invalid because it lacked a judge’s signature or an appropriate seal. The citation in the record, however, was signed by the district clerk and bore the court’s seal. At the bill-of-review hearing, Theriot did not offer independent evidence corroborating actual nonservice.

Theriot also disputed the trial court’s jurisdiction, arguing in part that he was “a state citizen of the Texas Republic.” The trial court found that he had submitted to its jurisdiction by signing the waiver and agreed order in 2015. It denied the bill of review, and Theriot appealed.

Issues Decided

• Whether Theriot proved actual nonservice sufficient to obtain a bill of review on due-process grounds.
• Whether his affidavit, testimony, and objections to the form of the citation overcame the presumption of valid service.
• Whether the absence of a judge’s signature on the citation made service invalid when Texas Rule of Civil Procedure 99 required the clerk’s signature and the court’s seal.
• Whether complaints directed at the merits of the underlying child-support modification could be adjudicated in an appeal from the denial of a bill of review.
• Whether the district court had subject-matter jurisdiction over the bill-of-review proceeding and personal jurisdiction over Theriot.

Rules Applied

Texas Rule of Civil Procedure 329b(f) preserves a trial court’s power to entertain a bill of review after its plenary power over the underlying judgment has expired. A bill of review is an independent equitable action used to set aside a judgment that can no longer be challenged through a motion for new trial or ordinary appeal.

Under the traditional bill-of-review framework, the plaintiff ordinarily must plead and prove:

1. A meritorious defense to the underlying cause of action;
2. That fraud, accident, wrongful conduct by the opposing party, or official mistake prevented the plaintiff from presenting that defense; and
3. That the judgment was rendered without fault or negligence by the bill-of-review plaintiff.

See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015).

A plaintiff alleging a due-process violation based on complete nonservice is relieved from proving a meritorious defense and fraud, accident, wrongful conduct, or official mistake. The plaintiff nevertheless must allege and prove that service did not occur. Caldwell v. Barnes, 154 S.W.3d 93, 97 (Tex. 2004); Mabon Ltd. v. Afri-Carib Enterprises, Inc., 369 S.W.3d 809, 812 (Tex. 2012) (per curiam).

A facially valid return of service carries a presumption of validity. A bill-of-review plaintiff’s uncorroborated testimony, standing alone, is insufficient to overcome that presumption. Primate Construction, Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).

The court also distinguished complete nonservice from a technical defect in service. Only a complete failure of service implicates the due-process exception applied in no-service bill-of-review cases. See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 274 (Tex. 2012).

Texas Rule of Civil Procedure 99(b)(2) requires a citation to be signed by the clerk under the seal of the court. It does not require a judge to sign the citation.

Finally, a bill of review is a separate proceeding from the underlying case. Unless the bill of review is granted, the court does not reach the merits of the underlying judgment. See Ross v. National Center for the Employment of the Disabled, 197 S.W.3d 795, 798 (Tex. 2006) (per curiam). Because a bill of review is a direct attack, it must be filed in the court that rendered the challenged judgment. Frost National Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010).

Application

Theriot attempted to invoke the relaxed bill-of-review requirements applicable to complete nonservice. That route required him to prove that he was not served—not simply that he believed the citation was technically defective. His allegations and affidavit focused on the supposed absence of a judicial signature and his assertion that he had not signed a return receipt. The record, however, contained a citation reflecting service at his last known address, signed by the district clerk and bearing the court’s seal.

The court rejected the premise that a judge had to sign the citation. Rule 99 assigns that function to the clerk. Because the citation contained the clerk’s signature and the court’s seal, Theriot’s objection did not demonstrate a defect under the rule, much less a complete absence of service violating due process.

The underlying modification order also recited that Theriot had been duly notified but did not appear. Faced with the facially valid service record, Theriot needed corroborating evidence of nonservice. He did not present such evidence at the bill-of-review hearing. His own assertions were insufficient to overcome the presumption that service had occurred.

The court separately declined to address Theriot’s complaints concerning the substance of the 2023 child-support order. Because the trial court denied the bill of review, the merits of the underlying modification—including his constitutional, paternity, conflict-of-interest, and disclosure theories—were not before the appellate court.

Theriot’s jurisdictional theories also failed. He invoked the district court’s subject-matter jurisdiction by filing the bill of review in the same court that rendered the order under attack. His prior waiver and participation in the agreed child-support order also supported the trial court’s conclusion that it had personal jurisdiction over him. His reliance on federal procedural rules and his characterization of himself as a citizen of the “Texas Republic” did not divest a Texas district court of jurisdiction.

Holding

The Fourteenth Court of Appeals held that Theriot failed to prove actual nonservice. Although a no-service bill-of-review plaintiff need not prove a meritorious defense or wrongful conduct by the opposing party, the plaintiff must still prove that service did not occur.

The court further held that Theriot’s uncorroborated assertions did not overcome the presumption arising from the service record. The citation reflected compliance with Rule 99 because it contained the district clerk’s signature and the court’s seal; no judicial signature was required.

The court held that challenges to the substance of the underlying child-support modification were not cognizable in the appeal from the denial of the bill of review. Those issues could be reached only if the bill of review were first granted and the underlying case reopened.

Finally, the court rejected Theriot’s jurisdictional challenges. The district court had jurisdiction over the bill of review, which was properly filed in the court that rendered the challenged order, and Theriot’s prior appearance and agreement supported personal jurisdiction. The order denying the bill of review was affirmed.

Practical Application

For family-law practitioners, Theriot makes the evidentiary hearing the focal point of a no-service bill of review. Pleadings, affidavits attached to the petition, and argument concerning perceived irregularities will not necessarily satisfy the plaintiff’s burden. Counsel should be prepared to offer admissible, corroborating evidence and secure express findings when possible.

In a default divorce, corroboration might include evidence that the respondent did not reside at the service address, employment or travel records placing the respondent elsewhere, testimony from disinterested occupants, postal records, security footage, or evidence that a signature was forged. In a custody or child-support modification, counsel should also examine whether service was directed to an obsolete address despite the opposing party’s documented knowledge of a current address.

Counsel defending a default order should avoid treating service as a clerical afterthought. Obtain the original citation and return, verify that the return identifies the correct person, address, date, time, and method, and preserve any supporting records from the process server or delivery service. A well-developed service record can prevent a later credibility dispute from becoming outcome-determinative.

Practitioners should also distinguish among three different complaints:

1. Complete nonservice: Potentially invokes due process and eliminates the need to prove a meritorious defense or wrongful conduct, but nonservice still must be proved.
2. Technical defect in service: Does not automatically establish a due-process violation or a void judgment.
3. Error in the underlying judgment: Ordinarily cannot be reached unless the bill of review is first granted.

That sequencing matters in divorce and SAPCR litigation. A party cannot use an appeal from the denial of a bill of review as a substitute for a timely appeal of property division, conservatorship, possession, support, or enforcement rulings.

Checklists

Preparing a No-Service Bill of Review

• Identify the precise judgment or order being challenged.
• Confirm that ordinary post-judgment and appellate remedies are no longer available.
• File the bill of review in the same court that rendered the challenged judgment.
• Plead actual nonservice unequivocally, rather than merely alleging “invalid” or “defective” service.
• Explain why the plaintiff’s fault or negligence did not contribute to the failure of service.
• Obtain the complete clerk’s record from the underlying proceeding.
• Inspect the citation, return, docket sheet, certificates, and address information.
• Determine whether the return is regular on its face.
• Anticipate the presumption of valid service created by a facially sufficient return.
• Request appropriate findings of fact and conclusions of law after the hearing.

Corroborating Actual Nonservice

• Obtain testimony from disinterested witnesses who were present at the alleged place of service.
• Secure lease, utility, tax, or governmental records showing the plaintiff did not reside at the service address.
• Collect employment, travel, medical, or location records placing the plaintiff elsewhere.
• Obtain postal or commercial-carrier records concerning delivery and signatures.
• Consider handwriting evidence if service allegedly depended on a disputed signature.
• Subpoena the process server when the return’s accuracy is contested.
• Investigate whether the physical description in the return matches the plaintiff.
• Preserve communications showing that the opposing party knew the plaintiff’s correct address.
• Authenticate exhibits and address hearsay objections before the evidentiary hearing.
• Do not rely exclusively on the plaintiff’s affidavit or testimony.

Defending a Family-Law Default Judgment

• Preserve the original citation and return of service.
• Confirm that the citation was issued by the proper clerk and bears the court’s seal.
• Verify compliance with the applicable service method and return requirements.
• Obtain the process server’s notes, photographs, GPS records, and contemporaneous logs.
• Preserve certified-mail receipts and delivery records when service was by mail.
• Compare the service address with pleadings, prior orders, and party communications.
• Identify recitals in the default judgment concerning notice and appearance.
• Prepare the process server or another corroborating witness for the bill-of-review hearing.
• Object when the plaintiff offers only conclusory or uncorroborated testimony.
• Keep the hearing focused on entitlement to the bill of review rather than prematurely retrying the underlying family-law dispute.

Separating Service Issues from Merits Issues

• Determine whether the complaint concerns complete nonservice, defective service, or the merits of the judgment.
• Do not assume that a technical irregularity establishes a due-process violation.
• Address the threshold bill-of-review elements before litigating conservatorship, support, property, or enforcement issues.
• Preserve merits evidence in case the bill of review is granted and the underlying case is reopened.
• Explain in briefing why substantive complaints are premature if the bill of review has not been granted.
• Avoid using a bill of review as a substitute for a missed appeal based solely on disagreement with the underlying ruling.

Citation

Theriot v. Scallion, No. 14-25-00267-CV (Tex. App.—Houston [14th Dist.] Nov. 3, 2026, no pet. h.) (mem. op.).

Full Opinion

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