            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
