Untitled Texas Attorney General Opinion ( 1952 )

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June 16, 1952
Hon. R. Y. Lindsey, Jr. Opinion No. v-1461
County Attorney
Dawson,County Re: Necessity fQr the answer
Lamesa, Texas to plaintiff's petition
in civil suits In jus-
tice courts to be in
Dear Sir: writing.
~,Werefer to yo'urreq~uestfor an opinion of
this office concerning the necessity for a written
answer to plaintiff's petition in civil wits In jus-
tice courts, in the light of the amendment of Rule 101
of the Texas Rules of Civil Procedure.
Rule 101, supra, as amended by the Supreme
c-
Co,urton October 10, 1951, became effective March 1,
19520 See 14 Texas Bar Jo,urnal633. As amended, that
rule now reads in part as follows:
"The citation shall be styled 'The State
of Texas' and shall be directed to the defend-
ant and shall command him to appear by filing
a written answer to the plaintiff's petltlon
at or before 10 o'clock a.m. of the Monday
next after the expiration of 20 days after
the date of service thereof, statlag the
place of holding the court. . . e
Rule 101 Is a part of those rules which gov-
ern civil procedure in the district and county courts.
Prior to its amendment, the rule req,uiredthat the clta-
tions command the defendant "to appear and answer." Now
it commands defendant "to appear by filing a written
answer."
Rules 523, 525, 526, 534, and 535 are a part
of the rules specifically controlling civil practice
in the j~usticecourts. These rules of,procedure read
in part as follows:
“Rule 523 n District Co,urtRules Govern.--
All r,ules governing the district and county
courts shall also govern the justice courts,
‘-
Hon. R. Y, Lindsey, Jr., page 2 (~-1461)
insofar as they can be applied
where otherwise specially providelaw
or these rules." [Emphasis added.)
-.
"Rule 525* Oral Pleadings---The
pleadings shall be oral, except where
otherwise specially provided; but a brief
statement thereof may be noted on the
docket; provided that after a case has
been appealed and Is docketed .ln the co'un-
ty (or district) court all pleadings shall
be reduced to writing."
"Rule 526. Sworn Pleadings,--@
answer or other pleading setting up any
of the matters specified in Rule 93 shall
be in writing and signed by the party 0;
his attorney and verified by affidavit.
(Rule 527 contains f,urtherprovisions with
respect to a plea of privilege.)
"Rule 534. Citation. When a claim
or demand is lodged with a justice for
suit, he shall issue forthwith citations
for the defendant or defendants. The clta-
tion shall require the defendant to appear
and answer plaintiff's suit at or before
10:00 osclock a.m. on the Monday next after
the expiration of ten days from the date
of service thereof, and shall state the
place of holding the court. . . 011
"Rule 5350 Answer Filed.--Where clta-
tion has been personally served at least
ten days before appearance day, exclusive
of the day of service and of return, the
answer of the defendant shall be filed at
or before ten o'clock a.m. on such day.
D o .II
R,ule523, supra, clearly pr,ovidesthat the
rules governing the district and county courts shall be
applicable to justice court proceedings when not in con-
flict with the existing rules and stahtes relating to
civil procedure in the justice courts. Rule 525, how-
ever, provides that the pleadings In a justice co,urt
"shall be oral" except where otherwise specially provid-
ed. Rule 101, as amended, does not specifically req'uire - -
that pleadings in the justice courts shall be in writing.
Hon. R. Y. Lindsey, Jr., page 3 (v-1461)
Nor does Rule 101, as amended, In any way modify, super-
sede, or repeal Rules 525, 526, 527, 534, and 535, which
exist unchanged to govern civil answers in the justice
courts.
Therefore, it is the opinion of this office
that Rule 101, as amended, does not req,ulrethe answer
to plaintiff's petition In civil suits In justice courts
to be In writing*
You have called our attention to the language
In R~ule535 which states that the answer of the defendant
"shall be filed." Prior to the adoption of the Rules of
Civil Procedure in 1940, It was clearly the rule that the
defendant's answer In the justice court 'couldbe oral un-
less it set up a matter which was specially required to,be
pleaded In writing. Where the answer was pleaded orally,
a brief statement of its contents was noted on the docket.
Moore v. Jordan, 67 Tex. 394, 3 S.W. 317 (1887); Low v.
Griffin, 41 S.W. 73 (1897). The official notes appended
to Rule 535 show that the rewording of the prior articles
in the civil statutes from which this rule was taken was
for the purpose of changing the time of answering and not
the manner of answering. It is our opinlon that the change
made by Rule 535 was not Intended to require the filing of
a written answer In the justice court.
SUMMARY
Rule 101 of the Texas R~ules of Civil
Procedure, as amended, does not req,ulrethat
answers to plaintiff's petition in civil nits
In justice courts shall be in writing.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J, C. Davis, Jr.
County Affairs Division
Mary K. Wall BY
Reviewing Assistant Chester E. Olllson
Assistant
Charles D. Mathews
First Assistant
CEO:mh