.
my 6, 1947
Eon. A. C. Winborn
Dlstrlct Attorney
Houston 2, Texas
attention: Honorable James Anderson, Jr.
Assistant Mstriot Attorney
opinion lo. r-189
Re: The neoessLty for alias olta-
tlon where service has not
been had ten days before ap-
pearance day in Justice Court,
under Supreme Court Rules 533
to 537.
Dear Sir:
Your request for an opinion upon the above sub-
ject mmtter Is as follows:
"A greet deal of confusion has resulted
in the local justloe of the peace courts from
an interpretationof Rule8 533, 534, 535 and
537, contrlned in Volume X,, Ilo.3, page 109,
of the Texas Bar Jourarl. This art1018 seems
to imply that if oitatlon is not served at
least ten dars before appearauce day, it will
be necessary to ,get out a second citation in
order to get the defendant Into court.
"By Article 2036, In such a situation the
defendant would have to plead at the next ten
of court, and mother oltstion would not be
necessary. In the justice court where thlr
question has arisen, call da7 is the seoond Hon-
d8j of each Month. While ArtLole 2036 hws been.
repealed by Rule 107, the case of Mu v. II.A.
James, Inc., 175 S. W. (2d) 74, holds th8t Rule
107 does not apply to justloe courts. Therefore,
nothwithrtrndlugRules 535 and 537, Is Article
2036 still in effect for procedure in the jwtioe
of the peace courts?"
Bon. A. C . Wlaborn - rege 2, Ho. V-l&
The
ldr lr oorpglr lo
r efer
a to
r ed
b yy c is
m es
follas I
*emsmoB z In the Jurtiao Court uac30~
Rule8 533, 534, 535 end 537, ii a personal
oltetion is aemved on lppoannoe day, or on
the day aubsequant, of the term to which it
ia retwble, would it be good aenioa fan
a subsequent tom?
“AHSWER: No. The abae ruler worn
taksn from Artlolea 2400, 2401, 2404 and
2009 of the Revised Statute8., The only
chenge wlth~mferenoe to pan-1 oitatiolr
wea that the oltatlons should be dlrwted to
the rty mthor thea to an effiesr of a Mmad
counry.
“The ebova stetutsa relating to the Jua-
tioe Court pro8odum did not require ten d8ya
service of oftation, but Artiole 2381 provided
that the ruk8 gaTernl8g MatriOt Cot&a 8hould
apply in the Juatloe Caurt in the iaaawe aad
return of oltetion.
“The Supreme C~ourttn adopting thm,mata;a
.took8 part a? Article 2009, spplyi
l
trict and County Courts aad In RuleP 35 pplLd
it to Justice CouPta, requll@l~ to8 Oaya oer-
vloe 0Ztatlona0
“Article 2036 provided that oititloma
shsll be served before the Petum day thereof.
The defendsnt shall not be required to pleed at
the return term of the Court unleaa the altetion
be served et leeat ten days befora the first day
of such term, exclusive of the days oi senioe
end ratmn, but when 8 oltstlon is served before
the return day thereo? and leas than ten days be-
fore the fLmt dsy o? atwh tern, exoluslte of
semLce.and returns, auah service shall oompel
the defendant to plead at the naxt auooeedlng
tena.
“Art1018 2036 was mpealsd by the rules and
was not osrried into the new rules.
Ron. A. C . Winborn - Page 3, NO. v-189
“In view of the above It Is the opinion
of the ccismltteethat to be effective at all,
the citation must be semed at least ten dogs
before the sppearance day stated therein, and
unless this is done the defendant is not re-
quired to en8wer et any time before 6 new cl-
tatlon la served on him.”
We think the comoittee*a opinion snnounoes the
true construotionof the Rulea.
It follows, as you fear, that this construction
will lead to conslderebledelay end expense. This would
seem to be 8 fitting opportunityto request the Supreme
Coupt to emend the rulea InvolvedI
This partloular problem was smong those dlacua-
aed at a meeting of the Rules Committee of the State l!br
sittlng with the Supreme Court et Austin on April 25,
1947. As a result OS suck diaouaalon, it has been recom-
mended by that group that the following changes be msde
in the rules:
“Rule 534.’ Cltetioa. -- Require CltstlOn
in justice court to direct the defendant to an-
swer on the first Monday after the expiration
of 10 daya sfter the se@ce of citstlon. .
“Rule 537. Appearanoe Day. -- Chenge Sp-
pearance day In justice court to hsraonlze with
the ebove ,Amendmentto rule 534. See Rule 237.”
SUHUARP
Under Court Rules 533, 534, 535 and
537, a oitetion issued out of a Juatloe
Court must be served et least ten d@ys be-
fore the appearance day stated therein,
end unless this Is done the .defendent18
not mqulred to answer et any time before
a new citstion is served on him. .
Pours very truly