Void vs. Voidable Judgments In Texas | Houston Lawyers Abogados

This is the text from PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271–73 (Tex. 2012):

Because there is some inconsistency in our state’s jurisprudence concerning important distinctions between void and voidable judgments and direct and collateral attacks, we begin our analysis with a discussion of clarifying principles.

It is well settled that a litigant may attack a void judgment directly or collaterally, but a voidable judgment may only be attacked directly. Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex.2009) (holding that a divorce decree must be “void, not voidable, for a collateral attack to be permitted”); Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex.App.—Austin 2000, no pet.). A direct attack—such as an appeal, a motion for new trial, or a bill of review—attempts to correct, amend, modify or vacate a judgment and must be brought within a definite time period after the judgment’s rendition. *272

A void judgment, on the other hand, can be collaterally attacked at any time. In re E.R., 385 S.W.3d 552, –––– (Tex.2012). A collateral attack seeks to avoid the binding effect of a judgment in order to obtain specific relief that the judgment currently impedes. Browning v. Prostok, 165 S.W.3d 336, 346 (Tex.2005). After the time to bring a direct attack has expired, a litigant may only attack a judgment collaterally.

The distinction between void and voidable judgments is critical when the time for a direct attack has expired. Before then, the distinction is less significant because—whether the judgment is void or voidable—the result is the same: the judgment is vacated. We have described a judgment as void when “the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (quoting Browning, 165 S.W.3d at 346). Some confusion persists, however, over collateral attacks premised on the absence of personal jurisdiction over a party. See, e.g., Skadden v. Alfonso, 217 S.W.3d 611, 619–20 (Tex.App.—Houston [14th Dist.] 2006) (noting “dicta” from this Court that courts may allow collateral attack if defendant is not served with process, but concluding that because McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961), had not been overruled or disapproved, the court was bound to follow it), rev’d on other grounds, 251 S.W.3d 52 (Tex.2008) (per curiam).

This confusion can be traced to our decision in McEwen. McEwen purported to distinguish the absence of personal jurisdiction from a lack of subject matter jurisdiction, observing that a default judgment rendered by a court without subject matter jurisdiction would be void whereas a judgment rendered by a court lacking personal jurisdiction over the parties might only be voidable. 345 S.W.3d at 710 (suggesting that the bill of review was the exclusive method to vacate a default judgment allegedly void for “want of service, or of valid service, of process”); see also Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974) (noting that McEwen was concerned about “jurisdiction over the subject matter … not … jurisdiction over the parties”). To the extent that McEwen may be read to foreclose a collateral attack on a judgment based on the failure to serve a party with notice, it has been overruled by Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). E.R., 385 S.W.3d at ––––.

In Peralta, the United States Supreme Court held that “a judgment entered without notice or service is constitutionally infirm,” and some form of attack *273 must be available when defects in personal jurisdiction violate due process. 485 U.S. at 84, 108 S.Ct. 896. The Court stated, “ ‘[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action….’ ” Id. (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Thus, the “[f]ailure to give notice violates ‘the most rudimentary demands of due process of law.’ ” Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 550, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). In light of Peralta, we hold that a judgment may also be challenged through a collateral attack when a failure to establish personal jurisdiction violates due process.

According to several cases, a failure to notify the opponent of trial renders a judgment only voidable:

A lack of notice of a trial setting, although it might cause the judgment to be voidable, does not render the judgment of the trial court void. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003)[incorrect analysis]; Rollins v. Beaumont, No. 05–04–01859–CV, 2006 WL 2100278, at *1–2 (Tex. App.–Dallas Sept. 1 2005, no pet.) (mem.op.) (rejecting argument that failure to receive adequate notice of hearing caused trial court’s judgment to be void); Flores v. Flores, No. 04–10–00118–CV, 2011 WL 3610428, at *2 (Tex. App.–San Antonio Aug. 17, 2011, pet. denied) (mem.op.) (concluding lack of notice does not necessarily void trial court’s judgment because due process requires only that method of service be reasonably calculated, under the circumstances, to apprise interested parties of proceeding and afford them an opportunity to present objections)[implying that if the method is not reasonably calculated, it would be void]; Morse v. Black, No. 03–08–00785–CV, 2009 WL 2476686, at *2 (Tex. App.–Austin Aug. 12, 2009, no pet.) (mem.op.) (same).

In re Lowery, 05-14-01509-CV, 2014 WL 8060585, at *1 (Tex. App.—Dallas Dec. 18, 2014, no pet.)

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