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