                            @ffice of tfieBttornepQhnerd
                                         %state of Qiiexas
DAN MORALES
 ATTORNEY
      GENERAL                                June 30,1995

     Honorable Mike Driscoll                          OpinionNo. DM-358
     Harris county Attorney
     1001 Preston, Suite 634                          Re: Whether service by delivery to the
     Houston, Texas 7700% I89 1                       premim under Texas Rule of Civil
                                                      Proaim      742icmstitutes valid service of
                                                      citation in a suit for rent joined with a suit
                                                      for forcible detainez (RQ-671)

     Dear Mr. Driscofl:

             You ask us whether a justice court has personsl jurisdiction to grant a de&&
     judgment against a tenant defendant in a suit for rent joined with a forcible detainer action
     “‘whenservice is completed by the alternative service mahods authorized in Tex. R Cii.
     P. 742a [but not by a service method authorized in Texas Rule of Civil Procedure 5361
     and the tenant fails to tile an answer or appuu at trial.” You also ask whether the citation
     form and notice requirements of Texas Rule of Cii Procedure 534, in addition to those
     of Texas Rule of Cii Procedure 739, apply to a joint action for forcible detainer and suit
     for rent. In your supporting brief you contend that rules 739,742, and 742a apply to the
     exclusion of rules 534 and 536 when the proceeding involves only a simple action of
     forcible entry and forcible detaina, see Prop. Code 4 24.001 (definition), or forcible
     detainer, see id. $24.002 (definition), but that a suit for rent that is joined with a forcible
     detainer action is subject to the citation issuance and service requirements established in
     rules 534 and 536. For the following reasons, we concur.

     L       The Texas Rules of Civil Procedure do not expressly indicate which rules for
             citation issuance, service, and returu apply to a rent action that ic joined
             with a forcible detainer action filed in justice court.

             You say there is disagreement among the justices of the peace of this state on
                                                                       .
     these questions and point out that the language of the rules relatmg to forcible deainer
     actions, Tex. R Civ. P. 738 - 55, does not address the problem of how to coordinate
     procedures governing a suit for rent with those governing a forcible detainer action.
     Texas Rule of Civil Procedure 738 provides:
                     A suit for rent may be joined with an action of forcible entry and
                detainer, wherever the suit for rent is within the jurisdiction of the
                justice court. In such case the court in rendering judgment in the
                action of forcible entry and detainer, may at the same time render
Honorable MikeDriscoll - Page 2           (DM-358)




          judgment for any rent due the landlord by the renter; provided the
          amount thereof is within the jurisdiction of the justice court.
The self-evidat purpose of this rule is the promotion of judicial economy, that is, the
avoidance of two separate proceed& between a landlord and a tensnt who has failed to
pay rent. Although a forcible detainer action may be based on a default under the tenancy
agreement other tban nonpayment of rent so that the facts in each cause of action may not
be the m      judicial economy is promoted even in this situation by allowing the landlord
to join both claims arising out of the landlord-tenant relationship.

        Unfortunately, the forciile detainer rules governing procedures between the time a
suit for rent is joined with a forcible detainer action and the time of rendition of the court’s
judgment on the two causesof action do not indicate how the two causes am supposed to
be coordinated. The rules simply do not address whether a suit for rent will be governed
by the rules for ~issuance,service, and return of citation in tbrcible detainer actions.
Ha~foundnocaselawdirectlybearingonthisproblan,wcmustconsidathe~of
each of the two causes of action and the purposes of the procedural rules relating to the
two in order answer your questions.

IL      A reut action is an in personam proceeding and, as an ordinary civil suit for
        debt, normally (when not joined with a forcible dttainer suit) is subject to
        the general rules for citation issuance, service, and retura contained in Tesas
        Rulea of CM Procedure 534,536, and 536a.

        Asuitforrentisaproceedmgforpersonslreliefagainstacurreatorfonnertamnt
and thus is an invocation of the court’s in personam jurisdiction ofthe tenant defendant.
In personam jurisdiction is the “[p]ower which a court has over the defendant himself in
contrast to the court’s power over the defendant’s interest in property (quasi in rem) or
power over the property itself (in rem).” BLACK’SLAW DETIONARY791 (6th ed. 1990)
(detining in per~~m @Mcriort).          An action in personam is one %eeking judgment
against a person involving his personal rights and based on jurisdiction of his person.” Id.
(defining inpersonam); acwrd Green Oaks Apts.. Ltd. v. Gmnan, 6% S.W.Zd415,418
(Tex. App.-San Antonio 1985, no writ).

        Furthermore, a suit for rent is an ordinary action for debt and thus normally (when
not joined with a forcible detainer suit) is subject to the citation issuance, service, and
return requirements of Texas Rules of Civil Procedure. 99, 106. and 107 in district or
county court or those of Texas Rules of Civil Procedure 534, 536, and 5369 in justice
court. Rules 534, 536. and 536a are found in part V of the Texas Rules of Civil
Procedure, which part governs ordinary civil proceedings injustice court.

        Rule 534 provides as follows:

                a. Issuance. When a claim or demand is lodged with a justice
           for suit, the clerk when requested shall forthwith issue a citation and


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         deliver the citation as directed by the requesting party. The party
         requesting citation shall be responsible for obtaining service of the
         citation and a copy of the petition if any is t&d. Upon request,
         separate or additional citations shall be issued by the clerk.
              b. Form. The citation shall (1) be styled “The State of Texas”,
         (2) be signed by the clerk under seal of court or by the Justice of the
         Peace, (3) contain name and location of the court, (4) show date of
         Cling of the petition if any is tiled, (5) show date of imuance of
         citation, (6) show file number and names of parties, (7) state the
         nature of plaintifl-s demand, (8) be directed to the defendant, (9)
         show name- and address of attorney for plaintiff, otherwise the
         address of plaintiff, (10) contain the time within which these rules
         require defendant to tile a written answer with the clerk who issued
         citation, (II) contain address of the clerk, and (12) shall notify
         defendant that in case of failure of defbndant to iile an answer,
         judgment by default may be rendered for the relief demanded in the
         petition. The citation shall direct defendant to tUe a written answer
         to plaintig’s petition on or before IO:00 a.m. on the Monday next
         after the expiration of ten days aSex the date of service thereof The
         requirrrnentofsubsections1Oand12ofthisruleshallbeinthefonn
         set forth in section c of this rule.
             E Notice. The citation shall include the following notice to
         defendant: “You have been sued. You may employ an attorney. If
         you or your attorney do not tile a written answer with the. clerk who
         issued this citation by IO:00 a.m. on the Monday next following the
         expiration of ten days after you were served this citation and petition,
         a default judgment may be taken agahrstyou.”
              d. Copies. The party filing any pleading upon which citation is
         to be issued and served shall furnish the derk with a sufiicient
         number of copies thereof for use in serving the parties to be saved,
         and when copies are so furnished the clerk shall make no charge for
         the copies.
       Rule 536 provides in part as follows:
               (b) Unless the citation or an order of the wurt otherwise
          directs, the citation shall be served by any person authorized by this
          rule by:
                   (I) deliveringto the defendant, in person, a true wpy of the
              citation with the date of delivery endorsed thereon with a wpy
              of the petition attached thereto, or



                                       p.   1913
HonorableA4ikeDriscoU - Page 4           (DM-358)




                    (2) mailing to the defendant by registered or certified mail,
               return receipt requested, a true copy of the citation with a copy
               of the petition attached thereto if any is 6led.
               (c) Upon motion supported by affidavit stating the location of
          the defbndant’s usual place of business or usual place of abode or
          other place where the defendant am probably be found and stating
          spedficaUythefaasshowingthatservicehasbeenattemptedunder
          either (a)(l) or (a)(2) at the iocation named in such atlidavit but has
          not been suR1cc+ssful the wurt may authorize service:
                    (1) by leaving a true copy of the citation, with a copy of the
               petition attached, with anyone over sixteen years of age at the
               location specifiedin such afkldavit,or
                   (2) in any other manner that the aiiidavit or other evidence
               before the court shows will be reasonably e&ctive to give the
               defendant notice of the suit.
Tex R Cii. P. 536(b), (c).’

       Piiy,   Rule 536a provides as follows:
               The officer or authorized person to whom process is delivered
          shall endorse thereon the day and hour on which he received it, and
          shall execute and return the same without delay.
               The return of the officer or authorized person executing the
          citation shall be endorsed on or attached to the same; it shall state
          when the citation was served and the manner of service and be signed
          by the officer officially or by the authorized person. The return of
          citation by an authorized person shall be verified. When the citation
          was served by registered or certified mail as authorized by Rule 536.
          the return by the officer or authorized person must also wntain the
          receipt with the addressee’s signature. When the 05cer or
          authorized person has not served the citation, the retum shall show
          the diigence used by the 05cer or authorized person to execute the
          same and the cause of failure to execute it, and where the defendant
          is to be found, if he can ascertain.
               Where citation is executed by an alternative method as
           authorized by Rule 536, proof of service shall be made in the manner
           ordered by the court.


        lAppam@, the rafoma in sabedion (c)lo “either(a)(l) or (a)(2)”should be to “either@Xl)
or @j(2).” See To%R Civ. P. 106(b).


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HonorableMikeDriswU - Page 5            (DM-358)




               No default judgment shall be granted in any cause until the
          citation with proof of service as provided by this rule, or as ordered
          by the court in the event citation is executed under Rule 536, shall
          have been on 6le with the clerk of the court three (3) days, exclusive
          of the day of tiling and the day of judgment.
        The language of rules 534 and 536, as amended in 1990, and of rule 536a, which
was added in 1990, follows closely that of rules 99, 106, and 107, which are. the geneml
rules for issuance, service, and return of citation in civil suits in the district and wunty
courts. These justice court rules differ from the wunty and district wurt rules only to the
extent necessary to wmport with the informalityofjustice wurt proceedings. See Ten. R
Cii. P. 534 wnunent-1990 (“To conform justice wmt service of citation to the extent
practicable to service of citation for other trial courts”), 536 wmment-1990 (same), 536a
wmment-1990 (“New rule to wnform justice court service of citation to the extent
practicable to service of citation for other trial courts”). In addition, Texas Rule of Cii
Procedure 523 provides, “‘AUrules governing the district and county courts shall also
govern the justice courts, insofar as they can be applied, except where otherwise
spedficdly provided by law or these rules.” Thus the Texas Supreme Court has
established a presumption that procedures in the justice courts are wnwrdant with those
in the district and county courts except where a rule or law specifically deviates from
those procedures.

         Under these general civil rules in part V, the justice court’s in personam
jurisdiction of the defendant in a suit for rent normslly would attach upon band delivery of
process to the defendant or upon the defendant’s receipt of process by registered or
 certitled mail, return receipt requested, in acwrdance with subsection (b) of rule 536. See
 59 TEX. JUR. 3~ Process, Notices, arid Subpoenm 8 39, at 347-48 & n.53 (1988); see
also Tex. R. Civ. P. 536a (speciticslly requiring, in case of service by mail as authorized
 by rule 536, that return of service “contain the receipt with the addressee’s signature”).

         With the possible exceptions of rules 739, 742, and 742a (quoted land discussed
below), rules 534 and 536 provide the only basis for the attachment of the justice wmt’s
personal jurisdiction in a suit for rent, in the absence.of some type of waiver of service by
the defendant. The Texas Supreme Court, in the case of W&on v. Dunn, 800 S.W.2d 833
(Tex. 1990). recently rerdlbmed that “jurisdiction is dependent upon citation issued and
served in a manner provided for by law,n id. at 836 (emphasis added), and held that “a
default judgment is improper against a defendant who has not been served in strict
wmpliance with law, even if he has actual knowledgeof the lawsuit,”id. at 837. See Ten.
R Cii. P. 124 (“In no case.shalljudgment be rendered against any defendant unless upon
service, or acceptance or waiver of process, or upon an appearance by the defendant, as
prescribed in these rules, accept where otherwise expressly provided by law or these
rules”); see ulso, e.g., Cares v. Pan, 663 S.W.2d 99, 102 (Tex. App.-Houston [I4 Dist.]
 1983, writ refd n.r.e.) (“Paihue to show affirmativelya strict compliancewith the rules of
 civil procedure relating to the issuance, service and return of citation will render the
attempted service of process invalid and of no elect”).

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Honorable MikeDriswU - Page 6            (DM-358)




        A suit for rent is appropriate for the use of either method of service in rule 536(b),
hand delivery or return-receipt mail. Either method is considered to be “personal service,”
Hwrison v. Dalla Court Reporting College, 589 S.W.2d 813, 815 (Tex. Civ. App.-
Dallas 1979, no writ), because either method effects actual delivery of process to the
defendant, see BLACK’SLAW DICTIONARY1369 (defining personal setice); cfl Stare
Fmm Fire & Gawal@ Co. v. Co&y, 868 S.W.2d 298, 299 (Tex. 1993) (per wriam)
(service methods of subsection (a) of rule 106 provide proof of actual notice to
defendant). “personal service guarantees actual notice of the pendency of a legal action; it
thus represents the ideal &um&anw under which to wmmence legal prowedmgs against
a person, and has traditionally been deemed necesmry in actions styled in perscmom.”
Greene v. Lindsey, 456 U.S. 444, 449 (1982) (citing McDonald v. Mabee, 243 U.S. 90,
92 (1917)).

       Although personal service is the ideal in a personal action such as a suit for rent, in
personamjurisdiction may also attach by substituted or wnstructive service.
           The right to resort to wnstructive or substituted service of process in
           personal actions or pmxedings according to the common law rests
           upon the necessities of the case.,and it seems generally to have been
           limited and restricted to cases where persona) service could not be
           made because the defendant was a nonresident, or had absconded, or
           had wncealed himselffor the purpose of avoiding service.
62B AM. JUR 2D Process 8 165 (1990) (footnote omitted); uccord Sgitcovich v.
Sgitcovich, 241 S.W.2d 142, 146-47 (Tex. 1951), cert. denied, 342 U.S. 903 (1952).
um is a web rewgnized rule of law that the Legislature (or in Texas, the Supreme Court)
may make rules authorixing a personal judgment against a resident citixen on the basis of
wnstnmtive or substituted service.” Sgi~covkh, 241 S.Wld at 146.

       Such rules must, of wurse, wnfonn to the requirement of due process. Id.
“[The] adequacy [of substituted or wnstructive service], so far as due process of law is
wncerned, is dependent on whether or not the particular form of service is reasonably
calculated to give the defendant actual notice of the proceedings and an opportunity to be
heard.” Id. at 147 (quoting 42 AM.JUR.Process 3 65, at 54-55 (1942)).
           “An elementary and tkndamental requirement of due process in any
           proceeding which is to be accorded finality is notice reamnabb
           calculated, under the chcumstances, to apprise interested parties of
           the pendewy of the action snd atford them the opportunity to
           present their objections.” M&me v. Central Hanover Bank & Tnrst
           Co., 339 U.S. 306, 314, 70 SCt. 652, 657, 94 L&i. 865 (1950).
           Failure to give notice violates “the most rudimentary demands of due
           process of law.” Armsirong v. Manzo, 380 U.S. 545, 550, 85 S.Ct.
            1187, 1190. 14 L.Ed. 62 (1965).
Peralta v. Heights Medical Ctr., 485 U.S. SO,84 (1988).

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Honorable Mike Driscoll - Page 7        (DM-358)




      In rules 106(b) and 536(c) the supreme wurt has authorized substituted service,
upon motion supported by an a&lavit, as follows:
               (I) by leaving a true copy of the citation, with a copy of the
          petition attached, with anyone over sixteen years of age at the
          location specifmdin such at&&it. or
              (2) in any other manner that the afEdavit or other evidence
          he&orethe wurt shows will be reasonably effective to give the
          defendant notice of the suit.
Substituted service under rule 106(b) is not permissible“without an afiidavit which meets
the requirements of the rule demonstrating the necessity for other than persomd service.”
3PXran, 800 S.W.2d at 836. That is, a “[p]laintitTneed not attempt both [preferred
methods of personal service] before procuring substituted service under Rule 106(c), but
he must establish that balh preferred methods are impractical before substituted service is
authorixed.”Harrison, 589 S.W.2d at 815. We believe the same showing is required for
authorixation to make substituted service of process under the identically worded rule
536(c). See Tex. R Civ. P. 536 wnunent-1990 (“To conform justice wurt service of
citation to the extent practicable to service of citation for other trial wurts”).

III.   A forcible detainer action is an in rem special proceeding and is subject to
       the special ruler for citation issuance, rervice, and retura coataiaed in Texas
       Ruler of Civil Procedure 739,742 and 742a.

        Having set forth above the procedural scheme for citation and service relating to
ordinary civil actions in justice wurt, we now will compare the scheme relating to forcible
de-mineractions. Unlike suits for rent, forcible detainer actions are classitled as in rem in
nature.. See Greene, 456 U.S. at 450. The essential purpose of an in rem pmweding is’
“to a5xt interests in specific property located within territory over which court has
jurisdiction,” and a judgment in such an action “binds the whole world and not simply the
interests of the parties to the proceeding.” BLXIC’SLAW DICTIONARY793 (de&ing in
rem); accord Green Oaks Apts., Ltd.. 696 S.W.2d at 418.

        Furthermore, the sole purpose of forcible detainer actions is to provide a summsry
mechanism to determine the right to possession of real property. “The Legislature has
provided by forcible entry and forcible detainer proceedings a summary, speedy, simple,
and inexpensive remedy for the determination of who is entitled to the possession of
premises without resorting to an action upon the title.” Holcombe v. Loritro, 79 S.W.Zd
307,309 (Tex. 1935); accordA4cGlo~hlin v. Kliebert, 672 S.W.Zd231,232 (Tex. 1984).
A forcible detainer action is a special proceeding in the justice court and is governed by
special rules. Hag&as v. Malbis Memorial Found,. 354 S.W.2d 368. 371 (Tex. 1962);
see Tex. R. Civ. P. 738 - 55. “[Tlhe question of right of possession is the only issue” in
theproceeding. Hag&ra.r,354S.W.2dat371;accordTex.R.Civ.P.               746.



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        Rules 739,742, and 742a are the niles for issuance, service, and return of citation
in forcible detainer proceedings. Rule 739 provides as follows:
               When the party aggrieved or his authorized agent shall file his
          written sworn complaint with such justice, the justice shall im-
          mediately issue citation directed to the defendant or defendants
          commanding him to appear before such justice at a time and place
          named in such citation, such time being not more than ten days nor
          less than six days from the date of service of the citation.
               The citation shall inform the parties that, upon timely request
          andpaymentofajuryfcenolaterthanfivedaysafterthedefendarrt
          issavedwithcitation,thecaseshallbeheardbyajury.
This rule lacks many of the requirements of rule 534, particularly the requirement of notice
that a dethult judgment may result from the defendant’s failure to appear. Another
sign&ant variation from rule 534 is in the appearance deadline, which under rule 739 is a
tinsecatainstatedinthecitationthatisnotmorethantendaysnorlessthansixdaysfrom
the date of service of citation and which under rule 534 is ten o’clock in the morning of
the next Monday after ten days from the date of service.

       Rule 742 provides as follows.:
               The 05cer receiving such citation shall execute the same by
          delivering a copy of it to the defbndant, or by leaving a copy thereof
          with some person over the age of sixteen years, at his usual place of
          abode, at least six days before the return day thereoc and on or
          before the day assigned for trial he shall return such citation, with his
          action wrzttenthereon, to the justice who issued the same.
Rule 742 thus provides for hand delivery of a wpy of the citation to the defendant as one
of two regular prefd      methods of service. This persona) service method is common to
both tule 742 and rule 536, so such delivery (unless the citation or a wurt order dii
otherwi~) will comply with both rules and, if citation has been issued properly. will attach
the court’s in personam jurisdiction to the served defendant in both the forcible detainer
action and the suit for rent.

        Rule 7420 provides as follows:
               If the sworn wmplaint lists all home and work addresses of the
           defendant which are known to the person tiling the sworn wmplaint
           and if it states that such person knows of no other home or work
           addresses of the defendant in the county where the premises are
           kxated, service of citation may be by delivery to the premises in
           question as follows:
               If the officer receiving such citation is unsucces&l in serving
           such citation under Rule 742, the officer shall no later than five days

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HonorableMikeDriswU - Page 9            (DM-358)




          after receiving such citation execute a sworn statement that the
          officer has made diigent efforts to serve such citation on at least two
          occasions at all addresses of the defendant in the county where the
          premises are located as may be shown on the Sworn wmplaint,
          stating the times and places of attempted service. Such sworn
          statement shall be IIled by the officer with the justice who shall
          promptly consider the sworn statement of the officer. The justice
          may then authorize service acwrding to the following:
              (a) The 05cer shall place the citation inside the premises by
          placing it through a door mail chute or by slipping it under the front
          door, and if neither method is possible or practical, the officer shsll
          securely a5x the citation to the front door or main entry to the
          gWllliseS.
               (b) The officer shall that same day or the nextday deposit in the
          mail a true wpy of such citation with a copy of the sworn complaint
          attached thereto, addressed to defendant at the premises in question
          lUldSUltbyfll-StdllSSmail;

              (c) The 05cer shall note on the return of such citation the date
          of delivery under (a) above and the date of mailingunder (b) above;
          and
               (d) Such delivery and mailingto the premises shall occur at least
          six days before the return day of the citation; and on or before the
          day assigned for trial he shsU return such citation witb his action
          written thereon, to the justice who issued the same.
               It shall not be necessary for the aggrieved party or his authorized
          agent to make request for or motion for alternative service pursuant
          to this rule.
Iv.    The service methods of roles 742 and 742a differ from those of role 536 in
       various ways that reflect the summay character of a forcible detainer
       proceeding, its limited in rem purpose of determining the immediate right of
       porsession of real property, and the defendant’s limited intercst in the
       subject matter of the proceeding.

         Although both rule 536(b) and rule 742 permit regular service by hand delivery to
the defendant, the service provisions of niles742 and 742a deviate from the regular
service procedures of rule 536 in various ways. The differmces in rules 742 and 742a
retlect the summary character of a forcible detainer proceeding, its limited in rem purpose
of determining the immediate right of possession of real property, and the defbndant’s
wnwmitantly limited   interest in the subject matter of the proceeding.



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        The first deviation is that rule 742 does not provide for return-receipt mail service.
Cj. Tex. R Civ. P. 536(b)(2). Return-receipt mail is not a practical method of service for
a forcible detainer action because a defendant t?equently would not actually receive
service of the citation until several days after the citation is sent. For example, there otten
would be a lag of several days between the defendant’s receipt of a notice of attempted
delivery of certified or registered mail and the defendant’s visit to the post 05ce to pick
up the package and sign the return receipt. Such a delay is not consistent with the speedy
disposition required in a forcible detainer action.

        The second deviation is that rule 742 provides for a second regular method of
service that would be pennissible under rule 536 only by leave of wurt: leaving a copy of
the citation at the defbndant’s usual place of abode with someone who is at least sixteen
years old. This method of substituted abode setvice is not effective unless the person
served has some relationship to the defendant so that the service is reasonably calculated
to notify the defendant of the lawsuit. Attorney General Opinion H-1315 (1978) at 2.
Rule 536(c)(l) would authorize leave of wurt for substituted abode service only “[u]pon
motion supported by aftidavit stating the location of the defbndant’s . . usual place of
abode . . and stating specitically the facts showing that service has been attempted [by
hand delivery to the defendant or return-receipt mail] at the location named in such
aflidavit but has not been successful.” Tex. R Civ. P. 536(c). Thus, rule 536 institutes in
the ordinary justice wurt dvil rules a preference for personal service and an aversion to
substituted abode service that are not found in rule 742.

        Although substituted abode service.does not guarantee the ideal of actual notice to
the defendant, we believe the preferred treatment of such service in rule 742 as an
equivalent to hand delivery to the defendant reasonably responds to the special nature of
the forcible detainer action. The action for forcible detainer will not serve its purpose of
deterring landlords f?om the impulse to evict tenants by force, see OLJNL. BROWDER       ET
AL.,BASICPROPERTY      LAW377 (5th ed. 1990). unless it proceeds speedily; so substituted
abode service responds to the exigency of the proceed& In a summary action to obtain
immediite possession of real property, service at the defendant’s usual place of abode,
upon a person of the required minimumage who is related to the defendant, is, we believe,
“reasonably calculated to give the defendant actual notice of the proceedings,”Sgitcovich,
241 S.W.2d at 147, ifthe defendant still desires to maintain a possessory interest in the
property. See Attorney General Opiion H-1315 (1978) at 2.2 Furthermore, if the


       2AlUmugh the consmutienality
                                  of a ax&s assuiion of ~smezml
                                                              jurisdiclienby copanrtive
rcrviadocsootdcpendonac~~tionofaproaodingasinrrmorinpersaram,         MvllaneY.Cenlral
Hanaver   Bank & Trust, 339 U.S. 306,312.13   (19SO),




                                              p. 1920
Honorable Mike Driscoll - Page 11        (DM-358)




defendant has abandoned the premises and another person unknown to the plaintiff
landlord has taken possession, substituted abode service is particularlywell suited to notify
that person of pending dispossessory proceedings.

        By comparison, a suit for rent, unlike a forcible detainer action, see Holcombe v.
L&no, 79 S.W.2d at 309, is not a summary proceeding. As we said earlier, the joinder of
a rent action with a forcible detainer action promotes judicial economy but not any goal
that requires an expedited trial of the rent action. There is no exigency in a suit for rent
that would justify dispensing, as rule 742 does, with the requirement of diligence in
attempting personal service on the defendant. Furthermore, the e&ctiveness of
substituted abode service as a means of notification of the rent action is not proportionate
to the “scope of potential adverse consequences to the person claiming a tight to more
etEctive notice.” Greene, 456 U.S. at 450. A defendant who has abandoned the property
and consequently does not receive notice of the suit for rent still may suffer the adverse
consequence of a personal judgment of a maximum of SS,OOO          plus interest, see Gov’t
Code 8 27.031(a)(l) @nisdictional limit for justice court), whereas a forcible detainer
defendant who has abandonedthe property has already relinquishedthe right of possession
and therefore wig suffer no substantialadverse consequence.

        We wig return to consideration of substituted abode service under rule 742, but
tirst we will analyze rule 742a, because that rule ilhrstrates more clearIy the distinction
between rent actions and forcible detainer actions in regard to the issue of reasonableness
of substituted service. Rule 742a contains the third deviation from rule 536 in that it sets
forth a “nail and mail” procedure for substituted service of citation in forcible detainer
actions: (1) “placing [the citation] through a door mail chute or by slipping it under the
door” of the premises or, “if neither method is possible or practical,” by afhxing the
citation securely “to the front door or main entry,” Tex. R. Civ. P. 742a(a), oral (2)
mailing a copy of the citation and sworn complaint to the defendant by 6rst-clas.s mail
addressed to the premises in question, Tex. R Civ. P. 742a(b). The second paragraph of
rule 742a provides that these methods of service are permissible only by leave of the
justice of the peace upon consideration of the process-server’saffidavit showing that, atter
diligent efforts, she has been unsuccess~l in serving citation under rule 742.

         We believe that nail-and-mailservice directed to the subject premises in a forcible
detainer action provides reasonable notice because of the “caretaker assumption.” This
assumption, according to one commentator who discussed it in connection with the an
analysis of service by posting atIer Greene, “wnsists of two interrelated propositions:
tirst, that those with an interest in property will supervise it either directly or through an
agent, and thus will see notice posted on the property; and second, that to the extent


(foobKltewntinucd)
          with feferenceto its abilityto informpeople of the pendewy of pmcecdiags
                                                                                 that
           affecttheiriatcresls.
Gmme Y.Lindwy, 456 U.S. 444,450~51(1982) (footnotesomitted).


                                         p. 1921
Honorable Mike Driscoll - Page 12       (DM-358)




property is lett unsupervised, it may be presumed &ndoned.” &thur F. Greenbaum, The
Postman Nmr Rings Twice: The ConstMionolity          of Service of Process by Posting Afrer
Greene v. Lindsey, 33 AM. U. L. REV. 601, 640 (1984). The United States Supreme
Court, in Greene v. Lindsey, a case involving a Kentucky statute permitting service by
posting (but not providing for supplemental service by mail) in forcible detainer actions,
applied the caretaker assumption to service by posting in such actions as follows: “If the
tenant has a wntinuing interest in maintaining possession of the property for his use and
occupancy, he might reasonably be expected to tkquent the premises; if he no longer
occupies the premiseq then the injury that might result from his not haying received actual
notice as a wnsequence of the posted notice is reduced.” Greene, 456 U.S. at 452.

       The second prong of the caretaker assumption, the “abandomnent presumption,”
distinguishes in personam fIom in rem actions in regard to the extent of the potential
adverse wnsequences its application will entail:
          In actions that involve property interests and that proceed without
          notice being seen, the abandomnent presumption mitigates the loss
          that the defendant incurs. The defendant’s loss of a potential interest
          in property is of little wnsequence if he has already abandoned that
          interest. In actions unrelated to property, however, this buffer is lost.
          Even ifthe defendant has abandoned an interest in the property upon
          which posting occurs, that does not signify that the defendant has
          abandoned nonrelated claimsthat are the object of the suit.
Grrenbaum, supru, 33 AM.U. L. l&V. at 640.

        In Greene the Court stated that, if personal service is impractiad service by
posting “‘would,in many or perhaps most instances, constitute not only a wnstitutionslly
acceptable means of service [in forcible detainer actions], but indeed a singularly
appropriate and effective way of ensuring that a person who cannot wnveniently be
served personally is actually apprised of proceedings against him.” Greene, 456 U.S. at
452-53. Nevertheless, the Court held that posting alone was wnstitutionally deticient in
the cira~stances of that case, in which the evidence showed that “notices posted on
apartment doors in the area where these tenants lived were ‘not inkequently’removed by
children or other tenants before they wuid have their intended e&t,” id. at 453; in which
“[n]&her the statute, nor the practice of the process servers, makes provision for even a
second attempt at personal service, perhaps at some time of day when the tenant is more
likely to be at home,” id. at 454; and in which supplementaryservice by mail had not been
used to enhance the reliability of posted service, id. at 455.

        Although diilaiming the responsibility to prescribe what scheme of substituted
service Kentucky should adopt to cure the wnstitutional deficiency, id. at 455 n.9, the




                                        p.   1922
HonorableMikeDriscoll - Page 13 W-358)




Court spoke approvingly of mail service used as a supplement to service by posting in
forcible detainer actions:
          Noticebymailinthecimunstancesofthiscasewouldsurelygoa
          long way toward providing the wnstitutionally required assurance
          that the State has not allowed its power to be invoked against a
          person who has had no opportunity to present a defense deqoite (I
          conlinuing interest in the resohtion of the controversy. Particuku&
          where the sub]ect matter of the action ah hqpens to be the
          mading a&ire= of the defenaht, and where persoml service is
          ine&ctml, notice by mail may reasonably be relied upon to provide
          interested persons with actual notice of judicial pnxeedings.
Id. at 455 (emphasis added).

        Greene teaches that when personal service is impractical, nail-and-mail service is
partiadarly well suited to forcible detainer actions, in which “the subject matter of the
action also happens to ba the mailing address of the defendant,” and such se&x. is a
reasonably &ective method, in those proceedings, of providing actual notice to persons
who have “a wntinuing interest in the resolution of the controversy.” Id. This rationale
applies specifically to in rem dispossessory proceedings. “I’he character of the action
reflects the extent to which the wurt purports to extend its power, and thus may roughly
describe the scope of po&ntial adverse wnsequences to the person claiming a right to
more effective notice.” Id. at 450. The abandonment presumption is not valid when
applied to an in personam action for rent, for a tenant’s abandonment of a rental unit
cannot reasonably be interpreted as an abandonmentof the tenant’s interest in contesting
any claim for rent on that unit.

       This does not mean that sub&u&d service by posting and mail can never be
wnstitutional in any action for rent, but we do believe that nail-and-mailservice is not a
reasonably effective form of notice in 011 suits for rent joined with forcible detainer
actions. The inapplicabilityof the caretaker assumptionto a suit for rent makes necessq
a case-by-case determination of the impracticalityof personal service and the reasonable-
ness of nail-and-mailservice in the circumstancesof each particular case before the court.
Nail-and-mail service in a suit for rent will be consistent with due process when, in the
circumstances of the particular case, personal service is impractical and nail-and-mail
service “will be reasonably effective to give the defendant notice of the suit,” Tex. R Civ.
P. 536(c)(2). &e, e.g., Mullcme v. Ceniral lirmowr Bank & TM, 339 U.S. 306, 314
(1950). Such a case-by-case determination is u~ecessary, however, in a simple forcible
detainer action because the caretaker assumption supports the appropriatenessof nail-and-
mail service-that is, the reasonable effectiveness of such notice-for that whole category
of action, Rule 742a, wnsistently with the nature of forcible detaincr actions and the
limited possessory interest that is the subject of the ‘action, does not require such a
determination.



                                        p.   1923
HonorableMike Driscoll - Page 14 (nM-358)




        Siarly,   we believe that substituted abode service under rule 742 is not a
reasonably effective form of notice in uII suits for rent because the caretaker assumption,
with its abandonment presumption, has no validity when applied to rent claims. gather,
this method of service is valid in a rent action only if, in the circumstances of the particular
case, personal service is impractical and abode service will provide reasonably effective
notice under the cirwmences.

V.      Applying the presumption against a construction that would lead to
        mischievous consequences and unconstitutional applications, tbe service
        methods of rules 742 and 742a are coustrued as not applying to a suit for rent
        even if it is joined with a forr%le detainer action, and rule 739 is construed as
        not applying because it is in :;larimateria with rules 742 and 742a.

        We believe that a wurt rule of procedure of doubttitl meaning, like a statute of
doubtgd meaning, should be wnstmed so as to avoid mischievous wnsequences and
appkations that would violate wnstiMional rights, Cl:67 TEX.JUR.3D Stututes 0 127,
at 725 (1989) (SOsaid of statutes); @ a&o Grienlal Hotel Co. v. Gr@ths, 33 S.W. 652,
662-63 (Tex. 1895) (statute susceptible of two wnstmctions shall be given interpretation
that “will attain the just solution of the questions involved and protect the rights of all
parties”). This presumption leads us to conclude that rules 742 and 742a do not apply to
suits for rent that are joined with forcible detainer actions because if they did, service
e&ted under those rules in some cases would violate the defendant’s due process right
to reasonable notice and an opportunity to answer the suit. Therefore, a suit for rent in
justice court is subject to the citation service requirements of rule 536 regardless of
whether it is joined with a forcible detainer suit.

        Having concluded that the forcible detainer service rules do not apply to a suit for
rent that is joined with a forcible detainer action, we further conclude that the supreme
court did not intend in providing,for joinder of suits for rent with forcible detainer actions
under rule 738 that such suits would be governed by any of the rules for issuance, service,
and retum of citation for forcible detainer actions. We base this conclusion on the rule of
interpretation that court ales, like statutes, that “deal with the same general subject or
have the same general purpose are considered to be in pari tnateria and wig be taken read
and wnstmed together as though they were parts of one and the same law,” which rule is
based on the assumption that severaJ rules “relating to one subject are governed by one
spirit and policy and are intended to be wnsistent in their several parts and provisions.”
Texas State Bd. of Phannaq v. Kittman, 550 S.W.2d 104, 106 (Ten. Cii. App.-Tyler
 1977, no writ) (so said of statutes); accord Stute v. Qyer, 200 S.W.2d 813, 817 (Tex.
 1947) (quoting Neil1 v. Keese, 5 Tex. 23, 33 (1849)). Rules 534, 536, and 536a. on the
one hand. and rules 739, 742, and 742a, on the othe ~;ietwo sets of t&s for issuance,
setvice, and return of citation that have the same gene:.. purposes of providing notice and
establishing the trial wurt’s personal jurisdiction over the defendant. See Cuter, 663
 S.W.2d at 102; 3 TEX. JUR. 3D Appwnmce !j 29, at 685-86. Therefore, because rules
742 and 742a do not apply to rent actions joined with forcible detainer actions, we believe
that the rule for issuance of citation, rule 739, should also be wnstrued as not applying to

                                          p.   1924
HonorableMike D&oU - Page 15 (nn-358)




rent actions joined with forcible detainer actions. Rather, citation issued for a suit for rent
in justice court must comply in all cases with rule 534 in order for the court’s jurisdiction
to attach to the defendant by service of process.

        We appreciate that rule 534 provides for a longer deadline for appearance than rule
739, but there is no reason why this difference should cause a problem. A defendant duly
served with citation issued in accordance with both rule 739 and rule 534 will simply have
two appearance days. Thus, depending on how the deadlines fall, in some cases a
defendant may detbult under rule 739 several days before the deadline for appearance
under rule 534. On the other hand, the defendant’sgeneral appearance before the deadline
under rule 739 will WnstiMe a waiver of issuance (under rule 534) and service (under rule
536) of citation in the rent action and wig subject the defendant to the wurt’s personal
jurisdiction regardless of any failure to comply with the n&s regarding citation and
service. See Tex. R Cit. P. 120,” 121’; 3 TEt. JUJZ.3D Appemmce $529, at 686-88
(1980) ca general appearance amounts to a waiver of personal service, or of any
irmgddies therein, or of any insufhciencyin the officer’sreturn of the citation”). Faihrre
to appear in person or by written answer on or before the fhst appearance day, the one for
the forcible detainer action, will be cause for entry of a default judgment on the forcible
detainer action. See Ten. R Civ. P. 743.

        Indeed, separate defatdt dates on the two actions in some cases may actuahy
promote speedy disposition of the forcible detainer action. Because citation under rule
739 will never provide for a later deadline than that under rule 534, a def&dant who has
relinquished or intends to relinquish possession may choose to default on the forcible
detainer claim and then appear in the rent action on or before the deadline under rule 534.
Jn that situation the justice wurt, upon calling the case on the default docket, may enter a
defkult judgment for possession under rule 743 on the forcible detainer claim. Ifthe two
actions had the same appearance deadline, a defendant not desiring to contest the forcible
detainer action still would be forced to appear in the forcible detainer action in order to
prevent a default on the rent action, thereby delaying judgment in the forcible detainer
action because the justice of the peace then would have to note the appearance and set
both the forcible detainer and rent actions for trial. See Ten. R. Civ. P. 539, 743.S




       %xasRoleofcivilPmwdom         121 pxwides as follows: ‘An answer SlldlWllStilUtCSll
appcuawofthcdcfen6antsoastodispcnmwithrhedIyforthc             ismsnceorrcrviccofcitauon
uponhim.”




                                          p.   1925
Honorable Mike Driswll - Page 16       W-358)




                                  SUMMARY

              Texas Rules of Civil Procedure 739,742, and 7424 the rules for
         issuance and service of citation in forcible entry and detainer actions
         and fbrcible detainer actions, do not apply to suits for rent that are
         joined with forcible detainer actions. To subject a def%ndantto a
         justice court’s personaljurisdiction in a rent action that is joined with
          a forciile detainer action, .&ation must be issued and served in
          compliance with Texas Rules of Civil Procedure 534 and 536, the
          rules for issuance and service of citation in ordinary civil
          proceed&. Therefore unless the defendant has waived txrvice by
          stipulation or appearance, the justice court does not have personal
         jurisdiction to grant relief in a suit for rent that is joined with a
          fbrciile detainer action ifcitation WBSnot so issued and setved.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Fii Amistant Attorney General

SARAH J. SHIRLE!Y
Chair, Opiion Committee

Prepred by James B. Pin
Assistant Attorney General




                                        p.   1926
