Back to Main Page / Back to List of Rules

Rule 647. Notice of Sale of Real Estate (Dec1941)

TEXT

The time and place of sale of real estate under execution, order of sale, or venditioni exponas, shall be advertised by the officer by having the notice thereof published in the English language once a week for three consecutive weeks preceding such sale, in some newspaper published in said county. The first of said publications shall appear not less than twenty days immediately preceding the day of sale. Said notice shall contain a statement of the authority by virtue of which the sale is to be made, the time of levy, and the time and place of sale; it shall also contain a brief description of the property to be sold, and shall give the number of acres, original survey, locality in the county, and the name by which the land is most generally known, but it shall not be necessary for it to contain field notes. Publishers of newspapers shall charge the legal rate of Two (2) Cents per word for the first insertion of such publication and One (1) Cent per word for such subsequent insertions, or such newspapers shall be entitled to charge for such publication at a rate equal to but not in excess of the published word or line rate of that newspaper for such class of advertising. If there be no newspaper published in the county, or none which will publish the notice of sale for the compensation herein fixed, the officer shall then post such notice in writing in three public places in the county, one of which shall be at the courthouse door of such county, for at least twenty days successively next before the day of sale. The officer making the levy shall give the defendant, or his attorney, written notice of such sale, either in person or by mail, which notice shall substantially conform to the foregoing requirements.

Amended by order of Sept. 20, 1941, eff. Dec. 31, 1941: The article above cited having been amended by Acts 1941, 47th Leg., H. B. No. 193, Sec. 2, the rule is now changed so as to read exactly like such amendment reads, the material change being with respect to the charges for publication.

ADVISORY OPINIONS

Questions: In a condemnation suit under Article 3264, where the residence of the defendant is unknown and it is necessary to obtain citation by publication, the following questions are presented:

1. Does Section 8 of Article 3264 authorize service by the posting of the notice or citation, when construed in connection with Article 29 (a), Section 5?

2. Does Rule 647 authorize service of citation in such a proceeding by posting instead of by publication?

3. Do Rules 114 to 117, inclusive, authorize the posting of citation for 28 days in lieu of publication, should there be a refusal on the part of one newspaper in an adjoining county to publish the citation at the statutory rates?

Answers: Question number 1 solely involves a construction of Statutes as distinguished from the Rules of Procedure, and therefore the Sub­committee does not feel that it is within its province to answer said question. Whether Article 3264 is so worded as to invoke the provisions of Article 29 (a) is not a matter over which this Subcommittee should undertake to express an opinion. However, the provisions of Article 3264, Section 8, expressly state that "Such notice may be served by publication in the manner provided for such service of citation by publication in other civil cases in the district or county court," and therefore the Subcommittee is of the opinion that citation by publication may be served in such a situation in the manner provided for by Rules 114 to 117.

In answer to question No.2, the Subcommittee is of the opinion that Rule 647 is not applicable to citation by publication nor to the notice provided for by Article 3264 in condemnation proceedings because such notice is in the nature of a citation. Therefore, we answer the second question in the negative.

We answer Question No.3 in the negative. Rules 114 to 117 provide solely for the service of citation by publication, and they do not make any provision for serving such citation by posting. If one newspaper in an adjoining county refuses to publish the citation at the statutory rates resort should be had to another newspaper to make the publication of the citation.

9 Tex. B.J. 262 (1946).