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The Attorney General of Texas
February 26, 1982
MARK WHITE
Attorney General
Honorable Mike Driscoll Opinion No. MW-452
Supreme Cart Building Harris County Arcorney
P. 0. Box 12546 1001 Preston. Suire 634 lte: Duty of county clerk of
Aus,,“, TX. 76711. 2546
512/475-2501
Houston, Texas 77002 Harris county to serve
Telex 9101674.1367 citation by publication in
Telecopier 512/475-0266 eminent domain and probate
matters and related questions
1607 Main St.. Suite 1400
Dallas. TX. 752U1-4709
Dear Mr. Driscoll:
2141742.8944
You have asked if ic is the duty of the county clerk of Harris
County to effect service of citation by publication in eminent domain
4624 Alberta Ave.. Suite 160
actions or probate matters. and if so, what fee rhe clerk is
El Paso, TX. 76905.2763
91515333464
authorized to-charge therefor;
With respect to eminent domain matters, section 6 of article
1220 Dallas Ave., Suite 202 3266. V.T.C.S.. provides:
Houston, TX. 77002-6986
7 1mm0666
If either party be dissatisfied with the decision
[of special commissioners in. condemnation
606 Broadway. Suite 312 proceedings], such party may... file his objection
Lubbock, TX. 79401.3479 thereto in writing... and thereupon the adverse
8061747-5236
party shall be cited and the cause shall be tried
and determined as in other civil causes....
4309 N. Tenth, Suite S (Emphasis added).
McAllan, TX. 76501.1665
5121662.4547 The Texas Rules of Civil Procedure govern citations in civil
causes; Rules 114, 115. and 116 speak to citations by publication and
200 Main Plaza. Suite 400
their service. See also Rule 109. Rule 116 states: "The citation,
San Antonio, TX. 76205-2797 when issued, shall be served by the sheriff or any constable of any
5121225-4191 county of the Stare of Texas...."
Prior to January 1, 1981, this language dovetailed neatly with
An Equal Opportunity/
Affirmative Action Employer Rule 103 which designated sheriffs and constables as those officers
authorized to serve process in general, and with Rule 106 which speaks
to the manner of serving citations in particular. But in 1980, the
Texas Supreme Court amended Rules 103 and 106, effective January 1,
1981, by adding the emphasized language below, inter alia:
Rule 103. Officer Who May Serve
All process may be served by the sheriff or
any constable of any county in which the party to
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,._,,. “’
:
Honorable Mike Driscoll - Page 2 (MW-452)
be served is found, or'. if by mail. either of the
county in which the case is pending or of the
county in which the party to be served is found;
provided that no officer who is a party to or
interested in the outcome of a suit shall serve
any process therein. Service by registered or
certified mail and citation by publication may be
made by the clerk of the court in which the case
is pending.
Rule 106. Service of Citation
(a) Unless the citation or an order of the
court otherwise directs, the citation shall be
served by any officer authorized by Rule 103....
See Pope and McConnico. Practicing Law with the 1981 Texas Rules, 32
Baylor Law Rev. 457, 485 (1980). Rules 114, 115, and 116 were not
amended.
In our opinion, it is now the duty of the county clerk of Harris
County, if properly called upon, to effect service of citation by
publication in eminent domain actions. See Rule 109, T.R.C.P. We
think Rules 103 and 106, which together nowypressly authorize clerks
of court in pending cases to effect service of citation by
publication, would effectively supercede any provision of Rule 116
that might conflict therewith. Rule 110. T.R.C.P. See Kimbrough v.
u, 256 S.W.2d 202 (Tex. Civ. App. - Eastland 1953. writ ref'd
n.r.e.1. But in our opinion, there is no conflict between them. A*Y
seeming conflict between Rules 106 and 116 is resolved by recognizing
that the phrase in Rule 116 reading, "[t]he citation, when issued,
shall be served by the sheriff or any constable....," is intended to
express the mandatory nature of the duty imposed upon officers
empowered to effect service of citation by publication, see Cook v.
Jones, 521 S.W.2d 335 (Tex. Civ. App. - Dallas 1975, dismissed as moot
on rehearing), and not to restrict those who might be authorized to
effect service of citation by that method. Rules of civil procedure
are to be construed so as to produce harmony rather than discord. Ex
parte Godeke, 355 S.W.2d 701 (Tex. 1962); Russell v. Hartford Casualty
Insurance Company, 548 S.W.2d 737 (Tex. Civ. App. - Austin 1977, writ
ref'd n.r.e.).
Until it was amended in 1980, "the sheriff and any constable"
were the only officers specified by Rule 103 for effecting service of
process of any kind. Even then, however, Rule 104 allowed the judge
of a court in which a cause was pending to direct by order that "all
process" be served by a resident citizen if there was no officer
qualified to do so in a particular case. A person so designated had
"full power and authority as an officer of the court to execute any
such process or writ and make due return thereof as in other cases" --
a power which included, in our opinion, authority to effect service of
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Honorable Mike Driscoll - Page 3 (Mu-452)
citation by publication. Thus, it is clear that the Rule 116 phrase,
“shall be served by the sheriff or any constable,” was never intended
to forbid the use of other persons to effect service of citation by
publication. Of course. the requisites of Rules 109, 111, 112, 113,
114, 115, 116 and 117. as well as Rule 244, must be satisfied
regardless of who may be authorized to effect service of citation by
that method. Cf. South Texas ‘Development Company v. Martwick. 328
S.W.2d 230 (Texxiv. App. - Waco 1959. writ ref’d n.r.e.) (authoritv
for citation by publicaiion strictly construed).
The situation with respect to probate matters is somewhat
different, but the result is the same: It is now the duty of the
county clerk of Harris County, if properly called upon, to effect
service of citation by publication in probate matters.
Rule 2 of the Texas Rules of Civil Procedure states that where
“any statute in effect immediately prior to September 1, 1941”
prescribed a rule in any probate proceeding, the statute, if not
theretofore repealed, would apply rather than the Rules of Civil
Procedure. Those statutes have since been superceded by the Texas
Probate Code. Section 33 of the Probate Code now sets out the
requisites of citation and service in probate matters, but provides in
subsection (d):
In all situations in which this Code requires...
that a person be cited, and in which a specific
method of.. . citing such person. or a specific
method of service and return of such citation...
is not given, or an insufficient or inadequate
provision appears with respect to any such
matters, or when any interested person so
requests, such... citation shall be issued,
served, and returned in such manner as the court,
by written order, shall direct in accordance with
this Code and the Texas Rules of Civil Procedure,
and shall have the same force and effect as if the
manner of service and return had been specified in
this Code. (Emphasis added).
The Probate Code, section 33(f)(3), provides for citation by
publication but it does not specify the persons authorized to effect
such service. Section 33(c) states that citations shall be directed
to the person or persons to be cited, but that no precept directed to
an officer is necessary (though a citation containing a precept
directed to an officer authorized to serve it is not to be considered
defective for that reason). In our opinion, Rules 103, 106, 109, and
110 are to be read with the pertinent provisions of the Probate Code
and, when so read, the clerk’s duty to serve citation by publication
in probate proceedings, if properly called upon to do so, becomes
clear. See Nass v. Nass, 228 S.W.Zd 130 (Tex. 1950); Katz v. Katz,
613 S.W.2d60 (Tex. Civ. App. - Beaumont 1981, no writ).
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Honorable Mike Driscoll - Page 4 (MU-452)
There are no statutes which specify a particular charge to be
made by county clerks for effecting service of citation by
publication, but section 3 of article 3930(b), V.T.C.S., as amended in
1981, states that a county clerk or clerk of court serving process by
certified or registered mail is to charge the same fee that sheriffs
and constables are authorized to charge therefor. (Such fees are to
be set in reasonable amounts by the commissioners court. V.T.C.S.
art. 3926a.) And section (10) of article 3930. V.T.C.S., also amended
in 1981, authorizes and requires county clerks to collect “reasonable
fees” for performing on behalf of persons, firms, corporations, legal
entities, governmental agencies and/or governmental representatives
“other duties prescribed, authorized, and/or permitted by the
legislature for which no fee is set.” (Emphasis added).
By enacting article 1731a. V.T.C.S., the Rule Making Act, the
legislature has “permitted” the duties of clerks to be altered and
prescribed by the Rules of Civil Procedure promulgated by the supreme
court. -See Garrett V. Mercantile National Bank, 168 S.W.2d 636 (Tex.
1943). Cf. Tex. Const. art. V, 925. We conclude that clerks are
authorizedand required by article 3930. section (10). to collect
reasonable fees for effecting service of citation by publication.
They should charge the same fees that sheriffs and constables are
authorized to charge for such service.
SUMMARY
If properly called upon to do so, it is the
duty of the county clerk of Harris County to
effect service of citation by publication in
eminent domain actions and probate proceedings.
For doing so, the clerk should charge the same
fees as the sheriff or constable is authorized to
charge.
&*
WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bruce Youngblood
Assistant Attorney General
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Honorable Mike Driscoll - Page 5 (MW-452)
APPROVED:
OPINION COMMITTEE
Susan L. Garrison. Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Joe Jarrard
Jim Moellinger
Bruce Youngblood
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