Court of Appeals of Texas, San Antonio.

TEXAS WORKERS’ COMPENSATION INSURANCE FUND, Appellant,

v.

James T. WEAVER, Appellee.

No. 04-96-00501-CV.

|

Jan. 29, 1997.

Sitting: TOM RICKHOFF, Justice, ALMA L. LÓPEZ, Justice and KAREN ANGELINI, Justice.

KAREN ANGELINI, Justice.

REVERSED AND REMANDED.

*1 The appellant, Texas Workers’ Compensation Insurance Fund (the Fund), appeals by writ of error from a default judgment granted in favor of the appellee, James T. Weaver. Because the judgment was rendered without proper service of process, we reverse and remand.

Background

Weaver filed suit against the Fund after the Workers’ Compensation Commission denied him benefits for a work-related injury. Weaver’s petition requested service of process “via certified mail-return receipt requested at [the Fund’s] mailing address at P.O. Box 12029, Austin, Texas 78711-2029.” Accordingly, the citation was issued, and a “green card” or return receipt was returned with a signature in the box marked “Signature (Agent).” The signature appears to be that of Dennis Winston.

A month later, the case was called to trial, but the Fund failed to appear. After hearing evidence, the trial court reversed the decision of the Workers’ Compensation Commission and ordered the Fund to pay benefits. Thereafter, the Fund appealed by writ of error, complaining that the trial court erred in entering the default judgment because service was defective and the trial court failed to consider the decision of the Workers’ Compensation Commission.

Discussion

In its first point of error, the Fund contends the trial court lacked personal jurisdiction to render judgment because service of process was improper. We agree.

For a plaintiff to obtain a valid default judgment, there must be strict compliance with the rules for service of process. Bronze & Beautiful, Inc. v. Mahone, 750 S.W.2d 28, 29 (Tex.App.-Texarkana 1988, no writ). When a defendant challenges a default judgment by petition for writ of error, valid service is not presumed. HB & WM, Inc. v. Smith, 802 S.W.2d 279, 281 (Tex.App.-San Antonio 1990, no writ).

The Fund was potentially amenable to service under article 2.11 of the Texas Business Corporation Act and article 1.36 of the Texas Insurance Code. See Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695, 698-99 (Tex.1990) (Phillips, C.J., dissenting). The Amarillo Court of Appeals, however, has held that only the Insurance Code is applicable to service on insurance companies. Commodore County Mut. Ins. Co. v. Tkacik, 809 S.W.2d 630, 632 (Tex.App.-Amarillo 1991, writ denied) (analyzing legislative history in rejecting the Higginbotham dissent). We need not decide which statute applies to the Fund because service in this case was defective under either statute.

The Business Corporation Act permits service on the corporation’s president, all vice presidents, and the registered agent. Tex.Bus.Corp.Act.Ann. art. 2.11(A) (Vernon 1980). Similarly, the Insurance Code permits service on the insurance company’s president, any active vice president, secretary, or attorney in fact “at the home office or principal place of business.” Tex.Ins.Code Ann. art. 1.36, § 2(a); see also Tkacik, 809 S.W.2d at 632. The Insurance Code alternatively provides for service “by leaving a copy of the process, notice, or demand at the home office or principal business office of the carrier during regular business hours.” Tex.Ins.Code Ann. art. 1.36, § 2(a).

*2 Here, the green card is signed by an alleged agent, but there is no indication of that person’s title or position. Without an affirmative showing that “Dennis Winston” was an authorized individual under either article 2.11 or article 1.36, we must conclude that service was improper. See Higginbotham, 796 S.W.2d at 699 (Phillips, C.J., dissenting) (discussing article 1.36); Bronze & Beautiful, 750 S.W.2d at 29 (discussing article 2.11).

Additionally, there is no indication that the Fund’s mailing address is the home office or principal place of business required by either method of service under article 1.36. While it is logical to presume that a mailing address is the same as the home office or principal place of business, “we may not presume the logical to be true for the purposes of finding jurisdiction on the face of the record.” Tkacik, 809 S.W.2d at 631; see also Higginbotham, 796 S.W.2d 699 (Phillips, C.J., dissenting) (explaining that “an address” is insufficient).

We sustain the Fund’s first point of error. We reverse the default judgment and remand the cause for further proceedings.