Mitchell v. Map Res., Inc., 21-0124

CourtSupreme Court of Texas
Writing for the CourtJustice Busby delivered the opinion of the Court.
Citation649 S.W.3d 180
Parties 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
Docket Number21-0124
Decision Date13 May 2022

649 S.W.3d 180

Stephen L. MITCHELL, Janie Mitchell Belew, Lisa Mitchell Seigmann, and Linda Mitchell Stapleton, Petitioners,
MAP RESOURCES, INC., Pecos Bend Royalties, LLP, PBR Properties Joint Ventures, and Tommy Vascocu, Respondents

No. 21-0124

Supreme Court of Texas.

Argued February 22, 2022
Rehearing Denied September 2, 2022

Sean M. Guerrero, Emilee N. Crowther, Janet R. Pritchett, Stephanie Perry, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, for Petitioners.

Joseph "Joe" R. Greenhill III, Jeffrey Kuhnhenn, John H. Cayce Jr., Kelly Hart & Hallman LLP, Fort Worth, Max Wright, Max E. Wright, PLLC, Midland, for Respondent Map Resources, Inc.

Michael T. Morgan, Morgan Leeton, PC, Midland, for Respondents PBR Properties Joint Venture, Pecos Bend Royalties, LLP, Vascocu, Tommy.

John B. McFarland, Guillermo Alarcon, Graves Dougherty Hearon & Moody, P.C., Austin, for Amici Curiae Trautman, Kathleen Smith, KST Properties, LP.

Guillermo Alarcon, Graves Dougherty Hearon & Moody, P.C., Austin, for Amicus Curiae Graves, Dougherty, Hearon & Moody, P.C.

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

649 S.W.3d 184

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


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

649 S.W.3d 185

as "Elizabeth A. Mitchell"). Sixteen 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 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 the county, and that, where the records showed an address for a

649 S.W.3d 186

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.

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...

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