EXEA~ORNEY GENERAL
OFTEXAS
Honorable B. T. Walters
County Auditor, Smith County
Tyler, Texas
Dear Sir: Opinion No. O-5725,
Re: Whether in ordinary civil suits
where citation Is by publication,
the sheriff may place the publica-
tion with a newspaper of his choice,
or do the attorneys in such cases
have the right to make the selection
of the newspaper publishing the cl-
tation.
Your letter of November 20, 1943, requesting the oplnlon
of this department on the questions stated therein, reads, in
part, as follows:
"In an ordinary civil suit, and not a tax
suit, where citation is by publication, is it
within the province of the Sheriff, and his duty
to place the publication with a newspaper of his
choice where there are several newspapers pub-
lished In the County, or do the attorneys in the
case have the right to select the newspaper in
which the citation may be published?
"The facts under which the controversy has
arisen are that some of the newspapers have a
flat rate on all publications, which is a cheaper
rate than others, and of course the other news-
papers are constantly after the Sheriff for their
proportionate share of these publications, and
you may well imagine that the litigants are in-
terested in the cheapest rate in order to hold
the cost down. Again, is it the duty of the
Sheriff to select the newspaper to publish these
cltatlons, OP do the attorneys In the case have
the right to select them?"
We have carefully considered Chapter 3, Title 42, Vernon's
Annotated Civil Statutes, and the Rules of Practice and Procedure
In Civil Actions promulgated by the Supreme Court of this State in
connection with your inquiry< Many of the statutes contained in
Honorable B. T. Walters, page 2 O-5725
Chapter 3, Title 42, Vernon’s Annotated Civil Statutes, have been
repealed or superseded by certain Rules of Practice and Procedure
in civil actions, as promulgated by the Supreme Court of Texas,
For the purposes of this opinion, we deem it unnecessary to quote
any of these statutes or mention those that have been repealed or
superseded by the Rules of Practice and Procedure in civil actions.
In connection with your request, we direct your attention to the
following Rules of Practice and. Procedure in civil actions: Nos.
15, 101, log, 110, 111, 112, 113, 114, 115, 116, and 117.
Rule 116 regarding service of citation by publication
provides :
“The citation, when issued, shall be served
by the sheriff or any constable of any county
of the State of Texas by having the same pub-
lished once each week for four (4) consecutive
weeks , the first piiblication to be at least
twenty-eight (28) days before the return day
of the citation. In all suits which do not in-
volve the title to land or the partition of real
estate, such publication shall be made in the
county where the suit is pending, If there be a
newspaper published in said county, but if not,
then in an adjoining county where a newspaper
is published e In all suits which involve the
title to land or partition of real estate, such
publication shall be made in the county where
the land, or a portion thereof, is situated,
if there be a newspaper in such county, but if
not, then in an adjoining county to the county
where the land or a part thereof is situated,
where a newspaper is published.”
Rule 117 regarding the return of citation by publication
provides:
“The return of the officer executing such
citation shall be indorsed or attached to the same,
and show how and when the citation was executed,
specifying the dates of such publication, be signed
by him officially and shall be ac$ompanied by a
printed copy of such publication.
We have failed to find any case or cases by the appellate
courts of this State passing upon a question either identical or
similar with the questions presented in your inquiry, under Chap-
ter 3, Title 42, Vernon’s Annotated Civil Statutes, or the Rules
of Practice and Procedure in Civil Actions as promulgated. by the
Supreme Court of this State.
=--
Honorable B, T, Walters, page 3 O-5725
Generally speaking, the statutes or rules authorizing
citation by publication are strictlyconstrued, since authority
for citation by publication comes solely from statutes and rules
promulgated by the Supreme Court and in cases falling within the
provisions of the statutes or rules there must be a strict com-
pliance with every essential requirement in res ect to service.
(See State v. Bagby's Estate, 126 S.W. (2d) 6877
The foregoing statutes and rules do not specifically pro-
vide whether the sheriff or the attorneys in civil cases may
choose the newspaper in which the publication of the"cltation Is
made. However, as Rule 116, supra, requires the citation, when
issued, to be served by the sheriff or any constable of any county
of the State by having the same published, etc., in accordance
therewith and as Rule 115, supra, requires the officer executing
such citation to show how and when the citation was executed by
specifying the date of such publication to be signed by the of-
ficer executing the same officially, etc., It is our opinion that
the sheriff or any constable executing the citation may publish
such citation in any newspaper of his choice, provided, of course,
such citation or citations must be published in such paper or'pa-
pers in compliance with the foregoing statutes and rules. Stated
another way, provided such papers are situated in the county where
the suit is pending or in suits where the title to land OP parti-
tion of real estate is involved such publication must be made in
the county where the land, or portion thereof, Is situated, if
there be a newspaper in such county, but if not, then in an ad-
joining county to the county where the land or a part thereof is
situated. where a newspaper is published.
Very truly yours
ATTORNEYGENERALOF TEXAS
By s/Ardell Williams
Ardell Williams
Assistant
AW:EP:wc
APPROVEDDEC 9, 1945
s/Grover Sellers
FIRST ASSISTANT
ATTORNEYGENERAL
Approved Opinion Committee By s/BWB Chairman