By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Recitation in return of service of
"citation" sufficient proof of service of petition and summons
(99-4-33)
On November 17, 1999, the Beaumont Court
of Appeals held that a recitation in a service return of service of
"citation" is proof that the petition and summons were served.
99-4-33. Gibson v. State, UNPUBLISHED, No. 09-98-260-CR, 1999 WL 1043971, 1999
Tex.App.Lexis ___ (Tex.App.—Beaumont 11/17/99)[Texas Juvenile Law 120 (4th
Edition 1996)].
Facts: Trent Elliot Gibson pleaded guilty to aggravated robbery pursuant to a
plea bargain wherein he agreed to community supervision for six years while
adjudication was deferred. Subsequently, the State moved to adjudicate guilt.
Following a hearing, the trial court adjudicated Gibson guilty and sentenced him
to seventy-five years' confinement in the Texas Department of Criminal
Justice-Institutional Division. Gibson appeals raising seven issues.
Held: Affirmed.
Opinion Text: In his first issue, Gibson contends the trial court lacked
jurisdiction because of inadequate service of process. Specifically, Gibson
argues the summons failed to state the purpose of the hearings was to consider
discretionary transfer to criminal court and the return does not show a copy of
the original petition was delivered. The summons states 'to hear the PETITION
FOR DISCRETIONARY TRANSFER TO A CRIMINAL DISTRICT COURT.' In accordance with our
decision in Polanco v. State, 914 S.W.2d 269, 270 (Tex.App.--Beaumont 1996, pet.
ref'd), we find the summons adequately gives notice as to the purpose of the
hearing.
Regarding the return, it provides a 'true copy of this Citation' was delivered.
The officer 'serving this citation ' (emphasis added) was directed to deliver a
'true copy of this summons, together with a certified copy of the Petition
Requesting the Juvenile Court to Waive Jurisdiction.' Furthermore, 'case law
defines citation as both the summons plus a copy of the petition, and since the
return states the 'citation' was delivered, a presumption of regularity arose.'
Id. at 271. Gibson has not rebutted this presumption; there is nothing in the
record to indicate Gibson did not receive a copy of the petition. Accordingly,
we find the trial court did not lack jurisdiction. Issue one is overruled.