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          Gl~St?HIZI.
                                      October       26, 1951


         Hon.  Robert S. Calvert                    Opiniou No. V-1332,
         Comptroller of Public Accounts
         Austin, Texas                              Re:   Ad valorem personal   prop-
                                                          erty tax suits.
         Dear Mr..Calvert:

                     You submit for the opinion of this office the questions
         contained in the letter addressed to you by Ha3. Ralph W. Kinsey.
         delinquent tax attorney of Daweon County. These questions are as
         followr:

                       1. la a perroaal propertg: suit filed in the Jur-
                tice of PEsce Court would the appearanew date be the
                Brat Monday after 10 day8 or the fir& Imtondayafter
                20 day8 from date of service?
                        2. Since in moat par6onal property suite it i6
                difficult or impoaeible to,determine what type’of prop-
                erty has been taxed,. unless the rendition or ael)eaa-
                meat rheets are available because the tax rolls show
                the property under the caption personal or miscells-
                8~008 without other aescription,. io it carrect aad per-
                missible   to list the entirelist     a6 rhown in Article
                 7328.1 sectiou 2 ln the citation 4lld petition?

                       ‘3. Do the provlrioar of Section 2, Artleii   7345b,
                V.C.S., requiring     thn impleading or tmtificatti  of other
                ta16bag unite hsvirrg   delbquent  ad vdlorem tax claim6
                rgdaat    the property involved la the rult, apply to per-
                eonal property tax suita?

                       Your second quertion has huretofore been answered in
         part by,thir office in Opinion V-l 120 (1930), a copy of which Jr ea-
         closed for your information.     In that opinion it was held that per-
         eonal property tax suit6 need only dercrlbe the propecty ia general
         termu, but thir doe6 sot mean that thblist eet out in Article 7328.1.
         V.C.S., may be used, ae ruggested in your letters, in each citetion.
         without regard to the kind bf peroonal property upon which the tax
         is delinquent Ln a particular c4ae. The deecrlption in the &atiooa
         should bo SutiSciraItl~ deflulte to oatable tba defer&ant to detrrmlaa
         yhdu~r    ihe ~s~amnaat    18 ag4Sn4t  poporty owned by him.
.




    Hon. Robert S. Calvert,    Page 2 (V-1332)



                   We shall answer y&r    first and third question8 in
    their order.

                 The provisions of ‘Rule 117a promulgated by the Su-
    preme Court applicable to delinquent tax suits apply with equal
    force to suits to collect delinquent taxes on personal property a8
    they do to the collection of delinquent taxes on real property.

                   Subdivision 6 of Rule 117a provides,    in part, a6 fol-
    lows:

                    ‘“The form of citation for personal service shall
            be, sufficient if it is in substantihlly the following form,
            with proper: changes to make the same applicable to
            personal property, where necessary, and If the suit in-
            cludes or 1s for the recovery of taxes assessed on per-
            sonal property, a general description of such personal
            property shall be sufficient; . . .” (Emphasio added.)

                 The rule then proceeds to preecribe a form if cita-
    tion, and while this form is referable to the district court. we per-
    ceive no valid reason why it could not appropriately be adapted
    for use in the justice court. Substitution of the justice court for
    the district court is one of the “eroper change* to make the same
    applicable to personal property,    where the suit for collection of
    delinquent peroonal property taxes 16 brought in the justice court.

                  The citation requires the defendant to appear and an-
    swer at or before 10:00 o’clock a.m. of the Monday next after the
    expiration df 20 days from the,date of service of citation. This
    conflicts ~withRule 534 governing citation generally in suits in the
    justice court in that Rule 534 requires the defendant ~toappear and
    answer the, plaintiff’s suit on the Monday ne’xt after the expiration
    of 10 days from the date of service,     We are of~tbe opinion, how-
    ever, that the effect of Rule 117a, which is applicable specifically
    to all delinquent tax suits, canstitutee an exception to Rule 534 gov-
    erzg    citations gerberally in &its filed in the justice court. Sub’-
    division 1 of Rule 117a provides that proceos b9 personal oervice
    in tax suit6 shall be “Served and returned and otherwise regulated
    by the provisiona 4 Rules 99 to 107, inclusive.”       Rule 101~require6
    that the defendant be commanded to appear and answer the plain-
    tiff’s petition *at or before 10 o’c1ockp.m. of the Monday next af-
    ter the expiration of 20 day6 from thd~date of 6ervice.”     It 16 our
    opinion, therefore, that Subdivision 6 of Rule 117a is applicable to
    s&s filed for delinqdent taxes on personal property in the justice
    Court and that the defendant should be cited tom   appear and an6wer
    a6 therein provided, namely, at or before 10:00 o’clock a.m. of the
    Monday next after the expiration of 20 day6 from the date of serv-
    ice of the citation.
    Hon. Robert S. Calvert,      Page 3 (V-1332)



                  In answer to your third question, we think it is appar-
    ent from the provisions of Article 7345b, V.C.S., that it was the
    intention of the Legi,slature ttit this article apply exclucively to
    suits for the collection’of delinquent taxee against real property
    and not to suits for the collection of delinquent taxes on personal
    property. We do not mean to say that taxes owing by a delinquent
    taxpayer on personal property may not be included in the same
    suit for delinquent taxes owing by him on his real property, but
    the provisions of Article 3345b relating to the impleading or noti-
    fication of other taxing units apply only to suits for delinquent
    taxes on real property, Therefore, in anseer t0 your third ques-
    tion, you are a.dvised that the county 8ttornep  or other attorney
    employed by the’county under contract for the collection of delin-
    quent takes should disregard the provisions of Article 7345b in
    filing suits for delinquent taxes on personal property, regardless
    of whether the suit is filed in district court, county cburt,  or jus-
    tke court.

                                   SUMMARY

                     Citations in personal property tax suits     need
              only describe the property in general terms.        The de-
              scription in the citation should be sufficiently    definite
              to enable the defendant to determine whether       the as-
              sessment is against property owned by him.         Rule 1178.
              Ten. Rules Civ, Proc;j Att’y Gen. Op. V-1120        (1950).

                    Rule 117aof the Rules of Civil Procedure gov-
              erns as to citation5 in delinquent tax suits on personal
              property filed in justice court, requiring the defendant
              to appear and answer at or before 10:00 o’clock a.m.
              of the Monday next after the expiration of 20 days from
              the date of service, and not as provided by Rule 534
              governing citations generally in suits in justice court.

                      Article3345b. V.C.S., does not apply to suits for
              the            of delinquent taxes on personal property,
                    colioctton
              but appliee only to sutts for the collection of taxes on
              real propertyA

    APPROVED1                                          Yours very     truly,
I
    w.   v.   Geppcrt                                   PRICE     DANIEL
    Taxation Division

    Everett Hutchinson                                 By    ?g?    2T&a*.J
    &eCUtiVe        AgaiSt8at                               L. ‘P. &Dar
                                                                 Assistant
    Charles D. M&hews
    First Aasietant
    LPL/mwb
    Epcl.
