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Rule 347. The Writ


The writ of certiorari shall be issued by the district clerk upon compliance of the party with the order of the district court or judge thereof. It shall be directed to the county clerk and command him to immediately make out a certified transcript of the proceedings designated in the writ, and immediately transmit the same to the district court out of which the writ issues. The writ shall be delivered to the county clerk by the district clerk in person or by mail.

Source: Art. 936.

Change: Requiring the county clerk to act immediately rather than before the next term of the district court and changing service provisions.

Oct. 29, 1940, eff. Sept. 1, 1941. (Source: Art.396, is amended and changed to read "Source: art. 936" by order of March 31, 1941, eff. Sept. 1, 1941).

Repealed by order of July 22, 1975, eff. Jan. 1, 1976.


(No. 61) Question: In regard to Rule 347 con­cerning Writs of Certiorari, (1) should the writ embody a paragraph command­ing the County Clerk to make a return on the writ showing how it has been exe­cuted, and (2) should the return upon the writ be made by the County Clerk or the District Clerk?

Answer: It is the opinion of the Sub-Committee that the first question should be answered in the negative; and that the second question should be answered to the effect that the District Clerk should make the return upon the writ.

The Statute (Art. 936) formerly re­quired the District Clerk to place the writ in the hands of the sheriff or constable who would then serve or cite the County Clerk. Under that situation the sheriff or constable was the officer to make the re­turn and show how he had executed or served the writ.

Rule 347 eliminates the intervention of the sheriff and constable entirely, and provides that the District Clerk shall not only issue the writ but that the District Clerk shall also serve the writ on the County Clerk by delivering it to him in person or by mail. Thus the District Clerk now performs the function heretofore performed by the sheriff, and therefore the District Clerk should make the return that was heretofore made by the sheriff.

The purpose of the return on a writ is to show how the writ has been served. It is not the function of the return to show whether the party cited has complied with the writ. Therefore, the return on a writ is usually made by the officer or person who serves the writ, and not by the person who is served.

Since the New Rule directs the District Clerk to serve the writ himself (instead of placing the writ in the hands of a sheriff or constable to serve it) the return should be made by the District Clerk, showing how and when he performed this duty either by mailing the writ or de­livering it in person to the County Clerk.

5 Tex. B.J. 426 (1942) reprinted in 8 Tex. B.J. 25 (1945).