§ 39.002.Failure to Give Notice

One sentence supplying the consequence, and it is unusually direct.

Failure to give notice in a case in which notice is required by Section 30.004(b) or Section 39.001 results in any default judgment in the case being set aside without costs.

"Results in ... being set aside" leaves no discretion. The court does not weigh whether the defendant had a meritorious defence, whether the failure caused harm, or whether the default was otherwise proper.

That is a striking departure from ordinary default practice, in which setting aside a default requires the defendant to show an excuse for the failure to answer, a meritorious defence, and no injury to the plaintiff.

Here the plaintiff’s omission is enough on its own.

"Without costs" is the second half of the consequence. The defaulted party bears nothing for having the judgment undone, so the cost of the failure falls on the party who failed.

Two notice provisions are covered. The one in this chapter, and the provision in Chapter 30 requiring notice in certain other circumstances — so the sanction is common to both.

The absoluteness is what makes the notice requirement work. A consequence that depended on a showing of harm would invite argument in every case, and a party might gamble on the notice being excused.

The practical lesson for anyone seeking a default against a state party is to keep the return receipt. The receipt is the proof, and the judgment is only as secure as the record of notice.