                        c OPY



Honorable Julian X. Welsler
County Attorney
;:ashinCtonCounty
Brenham, Texas
Dear Sir:                       Opinion No. 0-333S
                                Re: Whether the sheriff executing
                                     process as required by Article
                                     3334, V.A.C.S., has to wait
                                     until the ten days provided
                                     therein have expired before
                                     he oan file his return in      '.
                                     oourt showing exeoutlon
                                     thereor.
           Your question andexplanation thereof as aontained.
in your letter of Maroh 25, requesting an opinion of this Uepart-
ment, re3Gs as follows:
           "QUESTIOWt When applioation for probate
     of a~will is riled, ana the Sherirr is given
     the oitation which under Art. 33N and Art.
     3310a of Vernon's Texas Civil Statutes shall
     be served by poeting one oopy thereor at the
     aourthouse door for not less than ten (10)
     days before the return day thereof, aan the
     Sherlfr after he has posted one copy thereof
     at the courthouse door immediately make his
     return and file same with the County Clerk,
     or does the sheriff have to wait until the
     ten days heve expired before he can file his
     return in oourt showing execution of the writ.
            n* * * .

          "For Illustration an appllaation for the
     probate of a will is file& In County Court on
     Thursday, Xarch 20, 1941, and the aitation is
     handed to the Sheriff of the County and he
Honorable Julian X. Melalem, Page P



       lcmsdlately Roes and post a oopy'thenoi at the
       oourthousc door on said ZOth day of Earoh, 1941,
       aald writ beinp returnable for Eonday, March 31,
       1841, r;n",OG the mz,e dry of Earoh 20, 1941,
       hevicp~;osted the copy of oitatfon as rewired
       by statute he -skieshis return sho<yvinE t&t he
       reoeivs:?~~116wri,ton the 20th day of &roh,
       1941, .nc:.that he executed sami on the 2~0th
       day of Xsrck, 1943,,bv ymting one copy there-
       0 i 51
            t t,i: courthouse aoor Por'not less than
       tea (1X) ?::y:i tmefore:.?creturn day t~kweof;
       the Sheriff file8 this return on s:.idZOth
       day of Mcrch, 19:;1,sitb the clerk of the Coun-
       ty Court."
           Artiole X%54, Vernon*8 Annotated Civil StaSutea rela-
 ttn  to aerviaa or aitatlon authorized ts ba isauod upon filing
 an applloatlon r0r probate 0r written will, provldesr
            "The citation shall be served by poetine
       one co::-thereof st the courthouse door for
       not lees than ten (10) days berore the return
       day thereof."

          _Artlale
           _       33lOs, Vernon's Annotated Civil Ststutes, in
part, provides:
            mAll altstlons and notloea iamed out of
       the Gountr Court in probate mattorn ahall be
       returnab1f.dto the Court from whioh issued on
       the rlrst Monday atter tha 8enioe Is psrf6otsd,
       A11 such notloes end aitetiona now required 'to
       be posted shall be poeted et the Oourt Heuae
       door ior not lees thzn+t;nF(lO) days bmtora the
       return day thereof.      .

     -_   -The first
                _ _ statute
                        ._ -above quoted. provides
                                             -     .the
                                                    .   oitation
                                                           .,_
 shall be "served by poster@ ona oopy tneraor at tne oourtnouae
 door for not less than ten (10) deya berore the return day thare-
 or. Substantially the ama language Is found in Artl8le 33lQa,
 that such citations, *now required to be posted" shall be posted
 for not iess then ten (lC,)d~tysbefore the return Uny thereor.
           ,Jrtlcie2034, Vernon*e AMotatod Clvll Statutes, pro-
 vides that the return of the offlaer exeauting the citatPon shell
 Honorable Julian R. Weisler, Page 3



 be endorsed on or attaohed to the same; and it further pravidea
 "it shall state when the citation is served and the manner of
 servioe, conforming to the command of the writ, and be signed
 by him officislly."
            In Words and Phrases, Permanent Edition, Vol. 33, P.
 120 is found the following with referenoe to advertising or
 giving not toe:
           *The verb 'post' Is defined in Webster's
      Dictionary as follows: 'To attach to a sign-
      post, or other usual place of afiixing publio
      notices; to advertise; as to post a notioe.'
      As used in Revised Civil Statutes art. 3230,
      providing that the olerk shall 'post* 8t
      leaat rive ooplea or the order for an eleo-
      tion, eta., means that notloe shall be given
      to the eleotors, eta. voss vs. Terrell, 34
      S.W. 170, 171, 12 Tex. Civ. App. 439."
           The Supreme Court in Roberts v. Stockslager, 4 Texas
308-10, said:
          *The provialons of the statute aa to the
     mode,of aerviee and the rullneaa of the return
     are aa plain aa they are Imperative. They oan-
     not be mistaken, and the oourta should not
     permit them to be dlaregarUed. They preaorlbbe
     the mode by whioh the court aoqulres jurledlo-
     tion over the peraon of the defendant1 and as
     this is neoeasary to give validity to,Its aota
     and judgments, the regulations on the aubjeot
     should be striotly obaerved by the oifioers
     charged with the duty, and enforoed by~the
     tribunal before which the mattera in aontro-
     veray are to be determined."
           The preaoribed mode of making the aervioe by the orrioer
Is that a copy of the citation be "posted." In Martin v. Smith,
23 Tex. Civ. App. 665, 67 S. W. 299, the oourt said: "There is
no statute which in the case of probate of wills makes the juris-
diction of the court to act depend on the return of the oitation
showingsthat the postlng,was had in all partioulars as the stat-
ute prescribes.* We are able to find one aaae only whioh atrong-
ly supports the view that the provision "for not less than ten
Honorable Julian E. Welsler, Page 4


(10) days b&ore the return day thereore, has no partioular
relation to the time in whioh the oifloer may make his return.
In Welson v. Stat6, 75 'S.W. 602, the Court of Criminal Appeals
said:
          "By 'posting as required by law' la meant
     that the notices must be actually posted the
     requisite number of days before the election
     Is held. The faat that the notioes may have
     been subsequently torn or blown down would
     not affect the validity of the election.
     n!herethe statute requires the notices to be
     posted 12 days before the eleotion;ifthe
     proof conclusively shows that said posting
     did occur, then the oourt, as indicated in
     the original opinion, is authorized to tell
     the jury, as a question of law, that the
     looal option law ia valid.*
          Artiole 2026, Revised Civil Statutes, provides that
the officer to whom a oitation is delivered shall endorse there-
on the day and hour on which he received it, and shall execute
                                                       --
and return the same without delay. The word "return' here means
the peal     return of the exeouted process as distinguished
from "return" in ArMole 2034, aupra.
          It strongly appears to us that when the oopy of auoh
citation as provided by etatute, ia onoe *poetedn or arrixed at
the courthouse door, the preaumptlon exiata that it has not only
been seourely fixed but will remain for the full ten (10) daye.
The offioer, having fulfilled his duty, is not required to withhold
making his return under the provisions of Artialea 2025 ana 2034,
supra. The oonolualon of law arlaing from the aotual *posting"
and the making of his return as required by these statutes, is
not affected by the offloer making his return prior to the expira-
tion of the time judioial aotion is authorized.

          It is thererore the opinion of this department that a
sherifr serving a oitation by vpoating" as required by Artiole
3334 and in auah manner apsolfied In Artiole 3310a, Vernon's
Annotated Civil Statutes, is not required to wait the expiration
of the ten (10) days mentioned therein before making his return
of the prooess to oourt.
RJRK:RS                                 Yours very truly
APPROVED APRIL 23, 1941               ATTORNEYGERERAL OF TEXAS
By S. GROVER SELLERS
FIRST ASSISTANT ATTORNEY GENERAL        By S. J. R. King, Assistant
                        APPROVED OPINION COMMITTEE BY S. BWB
                                                         CHAIRMAN
