Case of the Day: In re JR
Posted on March 5, 2019
The case of the day is In re JR (Tex. Ct. App. 2019). The Texas Department of Family and Protective Services sought to terminate the parental rights of a father over his child in Texas. The father resided in Mexico. His address was unknown, so the court authorized “service by posting,” which is what Texas calls notification au parquet. The summons, apparently, is “posted” at the courthouse. The case went to trial, and the father moved for a directed verdict on the grounds that he had not been properly served with trial. At some point, the Department uncovered the father’s address in Mexico, though it’s not really clear when that happened. The court denied the motion and ruled against the father on the merits, and he appealed.
On appeal, the court reversed. It held that the Hague Service Convention required service through the Mexican central authority. The judges’ hearts were in the right place, but the case is wrongly decided, for two reasons. First, if (as it seems) the father’s address was unknown at the time of service, then under Article 1 the Convention simply does not apply. Second, even if the Convention applies, it applies only when there is occasion to transmit a document abroad for service. And whether there is such an occasion is a matter for the law of the forum. So if Texas law allows you serve process simply by posting a notice at the courthouse, then that service does not violate the Convention. (Note that the US Supreme Court, in Volkswagen, expressed some uncertainty about whether the Convention would apply to notification au parquet. The correct rule seems to me that the Convention does apply in cases where the plaintiff can make substituted service on an official in the forum, e.g., the secretary of state, and then that official has to transmit the document abroad in order to make the service complete, but not in cases where there is no such additional requirement).