Untitled Texas Attorney General Opinion ( 2016 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 28, 2016
The Honorable Micheal E. Jimerson Opinion No. KP-0074
Rusk County & District Attorney
115 North Main, Suite 302 Re: Whether section 202.052 of the Estates
Henderson, Texas 75652 Code requires citation by publication in all
actions to determine heirship (RQ-0058-KP)
Dear Mr. Jimerson:
You ask in which instances citation by publication is required under section 202.052 of the
Estates Code. 1 Chapter 202 of the Estates Code governs the determination of heirship in certain
probate proceedings. See generally TEX. EST. CODE§§ 202.001-.206. Section 202.002 authorizes
a court to conduct a proceeding to determine heirship in specific instances, including, among
others, when a person dies intestate owning property in this state. Id. § 202.002. Section 202.004
authorizes specific individuals to commence and maintain a proceeding to declare heirship, and
the person doing so must file an application with the court that lists, among other information, the
"names and physical addresses ... of the decedent's heirs." Id. §§ 202.004, .005(2). Each person
who is named as an heir of the decedent in the application, as well as "each unknown heir of the
decedent," must be made a party to a proceeding to declare heirship. Id. § 202.008(1).
Subchapter B of chapter 202 establishes notice requirements for a proceeding to declare
heirship. Id. §§ 202.051-.057. Service of citation by mail is generally required for distributees
whose names and addresses are known or can be ascertained through the exercise of reasonable
diligence. Id. § 202.051. In addition, section 202.052 provides for citation of service by
publication:
If the address of a person or entity on whom citation is required to
be served cannot be ascertained, citation must be served on the
person or entity by publication in the county in which the proceeding
to declare heirship is commenced and in the county of the last
residence of the decedent who is the subject of the proceeding, if
that residence was in a county other than the county in which the
proceeding is commenced. To determine whether a decedent has
any other heirs, citation must be served on unknown heirs by
publication in the manner provided by this section.
1
Letter from Honorable Micheal E. Jimerson, Rusk Cty. & Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y
Gen. at I (Oct. 2, 2015), https://www.texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").
The Honorable Micheal E. Jimerson - Page 2 (KP-0074)
Id. § 202.052. Citation by publication involves publishing "one time in a newspaper of general
circulation in the county in which the proceeding is pending." See id. § 51.054(a). Your question
is whether section 202.052 requires citation by publication in all proceedings to declare heirship
or in only those instances when a court has determined, "based on credible evidence, that an
unknown heir may exist." Request Letter at 1.
"Our primary objective when construing a statute is to ascertain and give effect to the
Legislature's intent." Tex. Dept. ofTransp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.
2004). "We rely on the plain meaning of the text as expressing legislative intent unless a different
meaning is supplied by legislative definition or is apparent from the context, or the plain meaning
leads to absurd results." Id. "We do not read words into a statute to make it what we consider to
be more reasonable," but will do so only to avoid "an absurd result." Union Carbide Corp. v.
Synatzske, 438 S.W.3d 39, 52 (Tex. 2014).
The first sentence in section 202.052 addresses instances when an heir or other person or
entity on whom citation is required to be served is known but whose address cannot be ascertained.
TEX. EST. CODE § 202.052. Thus, it requires citation by publication on those known heirs only
when such circumstance exists. By contrast, the second sentence of section 202.052 addresses the
possibility of "unknown heirs." Id. The word "must" is "generally recognized as mandatory,
creating a duty or obligation." Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
Nothing in the language of section 202.052 or in the context of chapter 202 as a whole suggests
that citation by publication on unknown heirs is required only in instances when credible evidence
of an unknown heir exists. Thus, a court would likely conclude that the plain language of section
202.052 requires citation by publication in all heirship proceedings to determine whether a
decedent has any unknown heirs.
The Honorable Micheal E. Jimerson - Page 3 (KP-0074)
SUMMARY
A court would likely conclude that section 202.052 of the
Estates Code requires citation by publication in all heirship
proceedings to determine whether a decedent has any unknown
heirs.
Very truly yours,
~?~KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee