                                                                              1’76



               OFFICE   OF THE ATTORNEY GENERAL       OF TEXAS
                                  AUSTIN




Bonor&100. s. Arnold
CopntyAttorney, Cob Cbuaty
Rdert      be,     T%maS


bar     8irl




                  TOW   lattir,or   30
th% opinion-of thSr departme
in rrads as iollmr,      I




                                                  Preatioe and
                                                  ld s%%m that
                                            oo%duregavaraiag
                                            enlad ao4 rebturnil
                                            ew of Rule 101, 104
                                         all aitatione  m?md,
                                         a aapr oi plafntlff*s

                              aa pur opinloa ou, ia WJxltihe?
                              atioas in auifs for delinquent
                             xeo%eU to a dsfemiant residing
                           y where nuoh suit ie filed,  should
                           ed by a oopy oi glnln0fit'a  ptttltloa
         to be U%llrero4to t&a dsfendantwith o true
         oopy 09 the Gitatiolr.%a

                 Rules 13, 101, 106 and 107 of the      T&s      Ru3eS   of
 ciw       Pr0f3a0re EXB 68 ~O~~OWSS

                "These rules aha3l'~Vex-n       the pmCedWe
          in the jwtioe,   oaunby, dbtrict       an4 appellate
Bonorable   0. S. Arnold,       page 2

      oourte of the State of Texas in all actions
      of a civil   nature, with suoh exaeptions         as my
    : be her&miter      ateted.    Xhsre sAy statute iA
      effsot   immediately prior to September 1, 1941,
      presorlbed   a rule of prooadure in luneoy, guard-
      ianship,   or estates of decedents,       or any other
      probate proceedings     in the oounty oourt diffsr-
      lug frm these rules,       suoh stetute     shall apply.
      All statutes   In 4ff40t 1ameUlatelp prior to
      September 1, 1941, preaoriblng        rules of proce-
      dure 1x1 bond or reooguizenoa      forfeitures     in
      Orhiin?31 oases are hereby OOAtiAUtd         iA 4ff4Ct
      as ru&es of prouedure govumi.ng such 44~44, but
      where such statutss     prusoaibua    Ao rulsa of pro-
      osdura ln snoh oases, these rulas shall apply.
      All etstutes   in eff+t     Lmediately     prior to
      September 1, 194l; preaoribing rules of prooe-
     dure in tax suite aza hersby oo~tinuud %IIsffsot
     as raJ4e of procedure govsrning  suoh oases,
     but where such statutes presoribed JIOrules
     of prooedure     In such    ceoes,   them   rules   shsll
     sPPlY l l
            YRule 101.. The oitatiog ahall be styled
     *The Stats   of Texm'  and- shall ,bs di_r?et?dto
     ths defendant and shall command him to.appsar
     and aginur ths plaintiff~s,pstltlonat or
     before-10 ofolook ~a.~.of the ~Mondaynext
     altar the expiration of 20 days frola the dets
     of servioe     thereof,    stating   the place of holding
     the oourt.      It shall state th8 ~dateof the
     filing of the p4titiOA,      itr file numbor and
     style of ths easu, and the dats of lesuanoe
     of the oltetlon     be signed and sealed by the
     olerk, end shell be aaooupanied by a oopy of
     plaintifr~a    petition.    The oitatlon   shall further
     direct that if it be not served within 90 days
     efter date of its lesuenoe,      it shall be returned
     unserved.     The party f illng any pleading upon
     which-oltation     1s to be bud shall furnish the
     olerk with a auffioient      number of oopfes thereof
     for ~44 in serving the parties        to be served, and
     when the c0pl44 are 80 furnlahed the olerk shall
     make no charge thsrefor.”
 Honorabls   G, S. Arnold,   pa,-a 3


             Wlls 106,
             “Cnlea8 it otherwise dlreots,   the olta-
       tlon shell be served by the offtoer    delivering
       to each defendant,   in person, a true copy of
       th4 Oitation tith the d-jte of delivery    endoraod
       thereon end with s oopy of ths petition     attached
       ther eto~.
             "Rule 107. The return     of th4 off5car axsou+~
      ing th4 oitatfon   shall be indorssd on or attachea
      to the -6;     It ahall atets when the oltation     was
      served and the mer        of 44rf544,   and ahall asrtlfy
      that a trus oo~y of, thd citation     with tha aocompeny-
      5ng oopy oft t&s petition    was dellvsrod   to the defend-
      ant, and ba signed by h5m ofi5054lly,        Y&en tha
      altatlon has not been served, ths return shall show
      the dlligenoa used by the oiflosr to sreouta ths same             ’
      and thr oausa of iallure to exsouta It, and whsra the
      Qafendant la to be found,     if ha oan asoertain. No
      Qsfault judgment shall be granted In any oaus4 until
      tha oltation,  with tha otfioor~s     return thsreon,
      shall hate bsan on file with the olerk oi the court
      ten days, 4xolualra    of the day oi filing    and ths
      day oi judgm4nt.R
              Artiole   732811, Varnon’s Annotated Civil Statutes,
is 4 specific     statute relating    to iorns and oertatn  proosdure
in delinquent     tar suits.    This department held in Opinion
No. 0-39&S A&at Artiole        7328-l is still   in toroe and effect
and said statute has not been repealed         or amended by the new
Rulss of ?raotioe      and Frocsdure in civil    actions promulgated
by the Supreme Court of this State.”

            In order to answer your question it is neoessary
to consider Articles  7328-l and 7345b, of Vernon’s Annotated
Civil Statutes of Texes, and the effect   of’ the Texas Rules
of Civil procedure upon these statutes.
            Heretorore    this depart&ant has rendered an
opinion (??o. O-&2l,fja) discussing   at length the form OS clta-
tions in delinquent    tax suits,   the rstarns oi suoh citations,
etc.   In that Opinion (:To. 0-&2&5a) a copy of which is enclosed
herzivith,it is Shttt?dZin;OJlgOth6T t?iilL~S:
                                             ,

                                                .
’ H&&able    G. 9. Arnold,      page I

        ”
                 vsincs there wsre two speoilio        statutes
         (irkhe      732C-1, Section 5 and Article        7345-S
         Seation 3, aupra..: governing cltetions        in tax
         suits in forae 8116 efisat      lmsdiately     prior
       ‘to Septmber      1, 19/l,  the original     date whan
         ths Texas Rules of Civil Prooadure became
         effeotive,    we think that it is dou’rtful that
         the Texae Rules of Civil procedurs are appli-
         aable generally    to ai tations in tax suite.        . .a
  However said opinion does not speolfically          psss on the
  question.4 presented by you,       The appellate    oourts of this
  Stats,    in.3ofar as we have b&m able to d&reins,          have
  not passed upon the question undsr oonslderatlon,            Af tar
  carefully cbnsidsrlng the tor&oing statutes and ths Texas
  Rules of Civil Prooedure we doubt that it is neoassery for
  oitatlona      to be aaaompaniad by a oopy of plaintiff’s
  petition     when such citations   are direatsd    to defendants
  residing     in the aounty where suoh suits are filed.        Bowuver,   ,
  until our courts have deolded the question It Is our oplnlon,
  that as a mntter of preoaution the ofta%ions should be ao-
  oompanied by a oopp of plalntifils        petition   whsn suah oita-
  tlocs are diraated      to defendants residing     in the county
  where the suits ara filed.
                                      Very truly     yours
                                 ATTORBEY   G??lEBALOF TFXAS


                                  y   wuk
                                            Ardell     Alliam
                                                      Assistant
