Untitled Texas Attorney General Opinion ( 1943 )

1’76 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Bonor&100. s. Arnold CopntyAttorney, Cob Cbuaty Rdert be, T%maS bar 8irl TOW lattir,or 30 th% opinion-of thSr departme in rrads as iollmr, I Preatioe and ld s%%m that oo%duregavaraiag enlad ao4 rebturnil ew of Rule 101, 104 all aitatione m?md, a aapr oi plafntlff*s aa pur opinloa ou, ia WJxltihe? atioas in auifs for delinquent xeo%eU to a dsfemiant residing y where nuoh suit ie filed, should ed by a oopy oi glnln0fit'a ptttltloa to be U%llrero4to t&a dsfendantwith o true oopy 09 the Gitatiolr.%a Rules 13, 101, 106 and 107 of the T&s Ru3eS of ciw Pr0f3a0re EXB 68 ~O``OWSS "These rules aha3l'~Vex-n the pmCedWe in the jwtioe, oaunby, dbtrict an4 appellate Bonorable 0. S. Arnold, page 2 oourte of the State of Texas in all actions of a civil nature, with suoh exaeptions as my : be her&miter ateted. Xhsre sAy statute iA effsot immediately prior to September 1, 1941, presorlbed a rule of prooadure in luneoy, guard- ianship, or estates of decedents, or any other probate proceedings in the oounty oourt diffsr- lug frm these rules, suoh stetute shall apply. All statutes In 4ff40t 1ameUlatelp prior to September 1, 1941, preaoriblng rules of proce- dure 1x1 bond or reooguizenoa forfeitures in Orhiin?31 oases are hereby OOAtiAUtd iA 4ff4Ct as ru&es of prouedure govumi.ng such 44~44, but where such statutss prusoaibua Ao rulsa of pro- osdura ln snoh oases, these rulas shall apply. All etstutes in eff+t Lmediately prior to September 1, 194l; preaoribing rules of prooe- dure in tax suite aza hersby oo~tinuud %IIsffsot as raJ4e of procedure govsrning suoh oases, but where such statutes presoribed JIOrules of prooedure In such ceoes, them rules shsll sPPlY l l YRule 101.. The oitatiog ahall be styled *The Stats of Texm' and- shall ,bs di_r?et?dto ths defendant and shall command him to.appsar and aginur ths plaintiff~s,pstltlonat or before-10 ofolook ~a.~.of the ~Mondaynext altar the expiration of 20 days frola the dets of servioe thereof, stating the place of holding the oourt. It shall state th8 ~dateof the filing of the p4titiOA, itr file numbor and style of ths easu, and the dats of lesuanoe of the oltetlon be signed and sealed by the olerk, end shell be aaooupanied by a oopy of plaintifr~a petition. The oitatlon shall further direct that if it be not served within 90 days efter date of its lesuenoe, it shall be returned unserved. The party f illng any pleading upon which-oltation 1s to be bud shall furnish the olerk with a auffioient number of oopfes thereof for ~44 in serving the parties to be served, and when the c0pl44 are 80 furnlahed the olerk shall make no charge thsrefor.” Honorabls G, S. Arnold, pa,-a 3 Wlls 106, “Cnlea8 it otherwise dlreots, the olta- tlon shell be served by the offtoer delivering to each defendant, in person, a true copy of th4 Oitation tith the d-jte of delivery endoraod thereon end with s oopy of ths petition attached ther eto~. "Rule 107. The return of th4 off5car axsou+~ ing th4 oitatfon shall be indorssd on or attachea to the -6; It ahall atets when the oltation was served and the mer of 44rf544, and ahall asrtlfy that a trus oo~y of, thd citation with tha aocompeny- 5ng oopy oft t&s petition was dellvsrod to the defend- ant, and ba signed by h5m ofi5054lly, Y&en tha altatlon has not been served, ths return shall show the dlligenoa used by the oiflosr to sreouta ths same ’ and thr oausa of iallure to exsouta It, and whsra the Qafendant la to be found, if ha oan asoertain. No Qsfault judgment shall be granted In any oaus4 until tha oltation, with tha otfioor~s return thsreon, shall hate bsan on file with the olerk oi the court ten days, 4xolualra of the day oi filing and ths day oi judgm4nt.R Artiole 732811, Varnon’s Annotated Civil Statutes, is 4 specific statute relating to iorns and oertatn proosdure in delinquent tar suits. This department held in Opinion No. 0-39&S A&at Artiole 7328-l is still in toroe and effect and said statute has not been repealed or amended by the new Rulss of ?raotioe and Frocsdure in civil actions promulgated by the Supreme Court of this State.” In order to answer your question it is neoessary to consider Articles 7328-l and 7345b, of Vernon’s Annotated Civil Statutes of Texes, and the effect of’ the Texas Rules of Civil procedure upon these statutes. Heretorore this depart&ant has rendered an opinion (??o. O-&2l,fja) discussing at length the form OS clta- tions in delinquent tax suits, the rstarns oi suoh citations, etc. In that Opinion (:To. 0-&2&5a) a copy of which is enclosed herzivith,it is Shttt?dZin;OJlgOth6T t?iilL~S: , . ’ H&&able G. 9. Arnold, page I ” vsincs there wsre two speoilio statutes (irkhe 732C-1, Section 5 and Article 7345-S Seation 3, aupra..: governing cltetions in tax suits in forae 8116 efisat lmsdiately prior ‘to Septmber 1, 19/l, the original date whan ths Texas Rules of Civil Prooadure became effeotive, we think that it is dou’rtful that the Texae Rules of Civil procedurs are appli- aable generally to ai tations in tax suite. . .a However said opinion does not speolfically psss on the question.4 presented by you, The appellate oourts of this Stats, in.3ofar as we have b&m able to d&reins, have not passed upon the question undsr oonslderatlon, Af tar carefully cbnsidsrlng the tor&oing statutes and ths Texas Rules of Civil Prooedure we doubt that it is neoassery for oitatlona to be aaaompaniad by a oopy of plaintiff’s petition when such citations are direatsd to defendants residing in the aounty where suoh suits are filed. Bowuver, , until our courts have deolded the question It Is our oplnlon, that as a mntter of preoaution the ofta%ions should be ao- oompanied by a oopp of plalntifils petition whsn suah oita- tlocs are diraated to defendants residing in the county where the suits ara filed. Very truly yours ATTORBEY G??lEBALOF TFXAS y wuk Ardell Alliam Assistant