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                                    The Attorney General of Texas
                                                    February 26, 1982

    MARK WHITE
    Attorney General

                                   Honorable Mike Driscoll                Opinion No. MW-452
    Supreme   Cart   Building      Harris County Arcorney
    P. 0. Box 12546                1001 Preston. Suire 634                lte: Duty of county clerk of
    Aus,,“, TX. 76711. 2546
    512/475-2501
                                   Houston, Texas   77002                 Harris    county   to    serve
    Telex 9101674.1367                                                    citation by publication in
    Telecopier   512/475-0266                                             eminent domain   and probate
                                                                          matters and related questions
    1607 Main St.. Suite 1400
    Dallas. TX. 752U1-4709
                                   Dear Mr. Driscoll:
    2141742.8944
                                        You have asked if ic is the duty of the county clerk of Harris
                                   County to effect service of citation by publication in eminent domain
    4624 Alberta Ave.. Suite 160
                                   actions or probate matters. and if so, what fee rhe clerk is
    El Paso, TX. 76905.2763
    91515333464
                                   authorized to-charge therefor;

                                        With respect to eminent domain matters, section 6 of article
    1220 Dallas Ave., Suite 202    3266. V.T.C.S.. provides:
    Houston, TX. 77002-6986
    7 1mm0666
                                            If either party be dissatisfied with the decision
                                            [of   special   commissioners    in. condemnation
    606 Broadway. Suite 312                 proceedings], such party may... file his objection
    Lubbock, TX. 79401.3479                 thereto in writing... and thereupon the adverse
    8061747-5236
                                            party shall be cited and the cause shall be tried
                                            and determined as in other civil causes....
    4309 N. Tenth, Suite S                  (Emphasis added).
    McAllan, TX. 76501.1665
    5121662.4547                        The Texas Rules of Civil Procedure govern citations in civil
                                   causes; Rules 114, 115. and 116 speak to citations by publication and
    200 Main Plaza. Suite 400
                                   their service. See also Rule 109. Rule 116 states: "The citation,
    San Antonio, TX. 76205-2797    when issued, shall be served by the sheriff or any constable of any
    5121225-4191                   county of the Stare of Texas...."

                                        Prior to January 1, 1981, this language dovetailed neatly with
    An Equal Opportunity/
    Affirmative Action Employer    Rule 103 which designated sheriffs and constables as those officers
                                   authorized to serve process in general, and with Rule 106 which speaks
                                   to the manner of serving citations in particular. But in 1980, the
                                   Texas Supreme Court amended Rules 103 and 106, effective January 1,
                                   1981, by adding the emphasized language below, inter alia:

                                             Rule 103. Officer Who May Serve

                                                  All process may be served by the sheriff or
                                             any constable of any county in which the party to



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                         :



Honorable Mike Driscoll - Page 2            (MW-452)




          be served is found, or'. if by mail. either of the
          county in which the case is pending or of the
          county in which the party to be served is found;
          provided that no officer who is a party to or
          interested in the outcome of a suit shall serve
          any process therein. Service by registered or
          certified mail and citation by publication may be
          made by the clerk of the court in which the case
          is pending.

          Rule 106.   Service of Citation

               (a) Unless the citation or an order of the
          court otherwise directs, the citation shall be
          served by any officer authorized by Rule 103....

See Pope and McConnico. Practicing Law with the 1981 Texas Rules, 32
Baylor Law Rev. 457, 485 (1980). Rules 114, 115, and 116 were not
amended.

     In our opinion, it is now the duty of the county clerk of Harris
County, if properly called upon, to effect service of citation by
publication in eminent domain actions. See Rule 109, T.R.C.P. We
think Rules 103 and 106, which together nowypressly authorize clerks
of court in pending cases to effect service of citation by
publication, would effectively supercede any provision of Rule 116
that might conflict therewith. Rule 110. T.R.C.P. See Kimbrough v.
u,      256 S.W.2d 202 (Tex. Civ. App. - Eastland 1953. writ ref'd
n.r.e.1. But in our opinion, there is no conflict between them. A*Y
seeming conflict between Rules 106 and 116 is resolved by recognizing
that the phrase in Rule 116 reading, "[t]he citation, when issued,
shall be served by the sheriff or any constable....," is intended to
express the mandatory nature of the duty imposed upon officers
empowered to effect service of citation by publication, see Cook v.
Jones, 521 S.W.2d 335 (Tex. Civ. App. - Dallas 1975, dismissed as moot
on rehearing), and not to restrict those who might be authorized to
effect service of citation by that method. Rules of civil procedure
are to be construed so as to produce harmony rather than discord. Ex
parte Godeke, 355 S.W.2d 701 (Tex. 1962); Russell v. Hartford Casualty
Insurance Company, 548 S.W.2d 737 (Tex. Civ. App. - Austin 1977, writ
ref'd n.r.e.).

     Until it was amended in 1980, "the sheriff and any constable"
were the only officers specified by Rule 103 for effecting service of
process of any kind. Even then, however, Rule 104 allowed the judge
of a court in which a cause was pending to direct by order that "all
process" be served by a resident citizen if there was no officer
qualified to do so in a particular case. A person so designated had
"full power and authority as an officer of the court to execute any
such process or writ and make due return thereof as in other cases" --
a power which included, in our opinion, authority to effect service of




                                     p. 1566
Honorable Mike Driscoll - Page 3   (Mu-452)




citation by publication. Thus, it is clear that the Rule 116 phrase,
“shall be served by the sheriff or any constable,” was never intended
to forbid the use of other persons to effect service of citation by
publication. Of course. the requisites of Rules 109, 111, 112, 113,
114, 115, 116 and 117. as well as Rule 244, must be satisfied
regardless of who may be authorized to effect service of citation by
that method. Cf. South Texas ‘Development Company v. Martwick. 328
S.W.2d 230 (Texxiv.   App. - Waco 1959. writ ref’d n.r.e.) (authoritv
for citation by publicaiion strictly construed).

     The situation with respect to probate matters is somewhat
different, but the result is the same: It is now the duty of the
county clerk of Harris County, if properly called upon, to effect
service of citation by publication in probate matters.

     Rule 2 of the Texas Rules of Civil Procedure states that where
“any statute in effect immediately prior to September 1, 1941”
prescribed a rule in any probate proceeding, the statute, if not
theretofore repealed, would apply rather than the Rules of Civil
Procedure. Those statutes have since been superceded by the Texas
Probate Code. Section    33 of the Probate Code now sets out the
requisites of citation and service in probate matters, but provides in
subsection (d):

         In all situations in which this Code requires...
         that a person be cited, and in which a specific
         method of.. . citing such person. or a specific
         method of service and return of such citation...
         is not given, or an insufficient or inadequate
         provision appears with respect to any such
         matters, or when any interested person so
         requests, such... citation shall be issued,
         served, and returned in such manner as the court,
         by written order, shall direct in accordance with
         this Code and the Texas Rules of Civil Procedure,
         and shall have the same force and effect as if the
         manner of service and return had been specified in
         this Code. (Emphasis added).

     The Probate Code, section 33(f)(3), provides for citation by
publication but it does not specify the persons authorized to effect
such service. Section 33(c) states that citations shall be directed
to the person or persons to be cited, but that no precept directed to
an officer is necessary (though a citation containing a precept
directed to an officer authorized to serve it is not to be considered
defective for that reason). In our opinion, Rules 103, 106, 109, and
110 are to be read with the pertinent provisions of the Probate Code
and, when so read, the clerk’s duty to serve citation by publication
in probate proceedings, if properly called upon to do so, becomes
clear. See Nass v. Nass, 228 S.W.Zd 130 (Tex. 1950); Katz v. Katz,
613 S.W.2d60   (Tex. Civ. App. - Beaumont 1981, no writ).



                               p. 1567
Honorable Mike Driscoll - Page 4    (MU-452)




     There are no statutes which specify a particular charge to be
made by county clerks for effecting service of citation by
publication, but section 3 of article 3930(b), V.T.C.S., as amended in
1981, states that a county clerk or clerk of court serving process by
certified or registered mail is to charge the same fee that sheriffs
and constables are authorized to charge therefor. (Such fees are to
be set in reasonable amounts by the commissioners court. V.T.C.S.
art. 3926a.) And section (10) of article 3930. V.T.C.S., also amended
in 1981, authorizes and requires county clerks to collect “reasonable
fees” for performing on behalf of persons, firms, corporations, legal
entities, governmental agencies and/or governmental representatives
“other duties prescribed, authorized, and/or permitted by the
legislature for which no fee is set.” (Emphasis added).

     By enacting article 1731a. V.T.C.S., the Rule Making Act, the
legislature has “permitted” the duties of clerks to be altered and
prescribed by the Rules of Civil Procedure promulgated by the supreme
court. -See Garrett V. Mercantile National Bank, 168 S.W.2d 636 (Tex.
1943). Cf. Tex. Const. art. V, 925. We conclude that clerks are
authorizedand   required by article 3930. section (10). to collect
reasonable fees for effecting service of citation by publication.
They should charge the same fees that sheriffs and constables are
authorized to charge for such service.

                               SUMMARY

               If properly called upon to do so, it is the
          duty of the county clerk of Harris County to
          effect service of citation by publication in
          eminent domain actions and probate proceedings.
          For doing so, the clerk should charge the same
          fees as the sheriff or constable is authorized to
          charge.

                                         &*
                                                   WHITE
                                         Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Bruce Youngblood
Assistant Attorney General




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Honorable Mike Driscoll - Page 5    (MW-452)




APPROVED:
OPINION COMMITTEE

Susan L. Garrison. Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Joe Jarrard
Jim Moellinger
Bruce Youngblood




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