Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
Petition for Writ of Mandamus.
Chief Justice Contreras and Justices Hinojosa and Tijerina
LETICIA HINOJOSA JUSTICE 
Alma Rodriguez Medina filed a petition for writ of mandamus
seeking to compel the trial court to vacate two orders signed
on September 17, 2019 granting a special appearance in favor
of real party in interest Levi Medina Sanchez (Levi). Because
we conclude that Levi waived his special appearance, we
conditionally grant the petition for writ of mandamus.
original proceeding arises from divorce proceedings pending
in Cameron County, Texas. In her "Second Amended
Original Petition for Divorce With Temporary Restraining
Order," relator alleged that: she was a domiciliary of
Texas; she and Levi were married on or about February 2,
2006; and they ceased living together as spouses on or about
October 1, 2017. Through this petition, relator sought a
divorce from Levi, including the division of community
property, and relator additionally included causes of action
against Levi and his children, Levi Medina Sanchez Jr. (Levi
Jr.), Judy Torres, Josafat Medina, Jennifer Medina, and
Joshua Medina, for assault, intentional infliction of
emotional distress, and breach of fiduciary duty. She sought
actual and exemplary damages, a temporary restraining order,
and injunctive relief. The petition alleged, in part, that
Levi improperly transferred 1001 Marrs Street in Brownsville,
Texas, to his son when the property was "100% community
property, purchased during the marriage." This pleading
recited that Levi "resides at 1720 Westminster Rd.,
Brownsville, Cameron County, Texas 78521" and stated
that process should be served on Levi at that address
"or wherever he may be found."
was unable to obtain service of process on Levi at the
Westminster address and filed an amended motion to obtain
substitute service. She alleged that civil process server
Rogerio Lopez attempted to serve Levi at the Westminster
address on three different occasions. According to
Lopez's affidavit, which was filed in support of
relator's motion for substituted service, Lopez contacted
Levi Jr. at that address "and was advised that his
father was not available and would return the following
afternoon." Lopez made two further visits to the
Westminster residence to no avail. The trial court granted
relator's motion and allowed substitute service on Levi
by leaving the citation at the Westminster address attached
to the front entry of the residence.
December 6, 2017, Levi's son Levi Jr. filed a
"special appearance" in which he "object[ed]
to the jurisdiction of the Court over the person of Alma
Rodriguez Medina on the ground that such person is not
amenable to process issued by the courts of this State as
shown in the verification." See Tex. Fam. Code
Ann. § 6.301 (stating that a suit for divorce may not be
maintained in this state unless, at the time of suit, either
the petitioner or the respondent has been a domiciliary of
this state for the proceeding six-month period and a resident
of the county in which the suit is filed for the preceding
ninety-day period). The record does not indicate that any
further proceedings were held regarding this motion, and
Levi's son was subsequently nonsuited from the case.
April 5, 2018, Levi filed "Respondent's Third
Special Appearance Under TRCP 120a With Notice of Newly
Retained Counsel (All Subject to 120a)." This pleading
apprised the parties that Levi had retained new counsel, who
was entering his appearance "subject to all the 120a
Special Appearances . . . previously filed in this
case." This pleading states that "[a]t all times
herein, Respondent has previously filed 120a Special
Appearances in this cause." The pleading does not
otherwise address Levi's special appearance or personal
jurisdiction over his person or property. Although this
pleading is entitled as the "Third" Special
Appearance, the record before the Court does not contain any
previous special appearance filed by Levi. The docket sheet,
included in the mandamus record, indicates that no such
document was ever filed. In this proceeding, Levi explains
that this pleading constituted "a second appearance
filed by the litigants in the case, but it was mislabeled
'Third Special Appearance.'"
April 5, 2018, Levi also filed "Respondent's
Verified Plea in Abatement, Verified Plea to the
[Jurisdiction]/Motion to Quash 106 Order Pending
'Hague-Compliant' Service of Process (All Subject to
120 Special Appearances)." This pleading again
reiterated that "[a]t all times herein, Respondent has
previously filed 120a Special Appearances in this
cause." Levi alleged that he was not served in
accordance with the dictates of the Hague Convention, which
he alleges "apply in all civil and commercial matters
where there are foreign Respondents that do not transact, nor
maintain, a presence in Texas." Levi asserted that he
did not transact business in Texas, maintain a business in
Texas, or reside in Texas, therefore, relator was required to
serve him in accordance with the Hague Convention. This
pleading asserted that the trial court lacked personal
jurisdiction over Levi, as a resident and citizen of Mexico,
because he was not properly served under the Hague
Convention, and argued that accordingly, the "temporary
orders and/or temporary injunction" previously issued in
the case were void. Levi asserted that "[b]ecause [he]
was not in Texas but rather was in Mexico at all relevant
times, it was error for the trial court to deny the Special
Appearances filed by [previous counsel] and to enter
Temporary Orders, particularly since [relator] has failed to
satisfy the Hague Convention and thus [Levi] was not amenable
to service from Texas." In his prayer for relief, Levi
"respectfully asks that this cause be abated, that the
alleged citation and service of process thereon be quashed as
being defective, and that service be perfected in accordance
with [the] Hague Convention." This pleading was
supported by Levi's "Declaration" that the
allegations in this pleading were true and correct.
See Tex. Civ. Prac. & Rem. Code Ann. §
132.001. Levi's "Declaration" further stated:
My date of birth is [February] 25, 1949, and I live in . . .
Matamoros, Tamaulipas, Mexico.
I was born in Matamoros, Mexico. I further declare under
penalty of perjury that the foregoing is true and correct.
I am a citizen of the Mexican Republic. I live in Mexico. I
am not a U.S. Citizen, nor a U.S. Resident.
I was deported from the United States of America on
[February] 21, 2006, for not having any legal status in the
I understand the Petitioner wants to get divorced and has
made all kinds of incredible allegations concerning our
marriage and the origins of some separate property.
I have yet to see the divorce papers and have yet to be
served in conformance with the Hague Convention.
I have yet to receive the petition translated into Spanish,
as well as the citation.
I have not been explained whether the purported time to
respond to the petition, once served, distinguishes between
calendar days or business days.
I have yet to see whether the translated documents were
forwarded to the Texas Secretary of State, as required by the
I have yet to see where the Texas Secretary of State
forwarded the translated [petition] and citation to
Mexico's Central Authority, or MCA, which is my
country's administering agency for the Hague Convention.
I have yet to see the Hague Service Convention ...