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Rule 523. District Court Rules Govern
All rules governing the district and county courts shall also govern the justice courts, insofar as they can be applied, except where otherwise specifically provided by law or these rules.
Source: Arts. 2381 and 2410.
Change: The particular provisions of these statutes have been covered by a single general rule.
Oct. 29, 1940, eff. Sept. 1, 1941.
(No. 71) Question: In a forcible detainer proceeding, the citation was addressed to the sheriff or constable instead of the defendant, as provided by Rule 739. Upon motion of the defendant, the citation was quashed. It is contended on the one hand that this is a special proceeding returnable at a special term of the justice court (Stacks v. Simmons, 58 S.W. 958 (Tex. Civ. App. 1900) and that it is necessary to have issued a new citation. On the other hand, it is contended that there has been a constructive appearance by virtue of Rule 122, and that under the holding of Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895), the justice court is not authorized to apply any other than the ordinary rules of law governing its proceedings, though the only question is possession, and the defendant is in court ten days hence or at least the first day of the next term. Will appreciate if you will advise your interpretation.
Answer: This subcommittee is of the opinion that the quashal would be an appearance and that at the time mentioned in Rule 122, if the justice court is then in session, and, if not, at the succeeding term of such court, the cause should proceed against the defendant.
Rule 122 makes such a quashal an appearance, and though it applies specifically to district and county courts it is, in our opinion, by force of Rule 523, made a part of the procedure in the justice courts in so far as it "can be applied, except where otherwise specially provided by law or ... rules."
We believe it can be applied and have found no conflicting requirements.
In the first case that you cite, as we read it, the Court of Civil Appeals found an inconsistency as between ordinary default judgment and forcible entry and detainer procedure but considered that in other respects the procedure to be applied in prosecuting this remedy was the ordinary procedure of the justice court. In the second of the cited cases the Supreme Court holds that in forcible entry and detainer the justice court is one of general jurisdiction and that its judgment On collateral attack is consequently good as against merely procedural defects. Evidently under each of the decisions ordinary procedure applies as a general rule in forcible entry and detainer.
Rule 122, concerning the effect of a quashal in district and county courts, reads:
"If the citation of service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a. m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him."
There seems to be no reason against applying this article in a forcible entry and detainer suit in the justice court unless it be that the time for taking defaults in justice courts is different from that above mentioned as the date for appearance and answer. We are of the opinion that those two occurrences would not necessarily coincide. For instance, they will not do so, in our opinion, in the district and county courts, themselves, whenever the first Monday, above mentioned, falls in vacation. See our views in 5 Tex. B.J. 95. So that, as we see it, another time for default would not bring about an irreconcilable conflict. The present case, however, is not one of default and, even with more force, we can see no reason against applying to it the appearance rule, above quoted, and. requiring trial without further citation after the quashal of the first citation.
5 Tex. B.J. 428 (1942) reprinted in 8 Tex. B.J. 27 (1945).
(No. 92) Question: Does Rule 142 prohibit an attorney from acting as surety in a case pending in the justice court?
Answer: We consider that the answer to this question should be in the affirmative, if the case supposed is one where the court has not given leave that the attorney act as surety. Rule 142 permits the clerk of the district or county court to require security for costs and adds that "No attorney or other officer of the court shall be surety in any cause pending in the court, except under special leave of the court." That this rule in its entirety is applicable as well to the justice court would seem clearly to follow from Rule 523 which reads that "All rules governing the district and county courts shall also govern the justice courts, insofar as they can be applied, except where otherwise specifically provided by law or these rules." Of course, the requiring of security for costs and the prohibition against attorneys as sureties can be as well applied in the justice court as in the district or county court, and, so far as we can ascertain, there is no contrary specific provision of the law or the rules. As you will see, Rule 523 is in broader language than R. S. Articles 2381 and 2410, which the rule replaces. These former articles applied to justice courts and made the law respecting security for costs, procedure, and other subjects specifically specified in the article applicable in the justice courts if prescribed for the district and county courts. The intention to embrace the matter respecting security for costs seems to be emphasized by this history of Rule 523 and its broad words, "All rules governing the district and county courts." We consider, however, that, as was held under old Rule 50 which Rule 142 embraces with like wording, if an attorney acts as surety without leave of court, while the attorney is in the wrong, that fact does not avoid his liability upon the bond or the validity of the bond itself. Kohn v. Washer & August, 69 Tex. 67, 6 S.W. 551 (1887).6 Tex. B.J. 107 (1943) reprinted in 8 Tex. B.J. 34 (1945).
(No. 95) Question: First - Do the New Rules authorize citation by publication in suits filed in justice courts? Second - Does non-resident notice constitute good process out of the justice court? Third - Do the New Rules authorize the issuant of writ of attachment out of justice courts?
Answer: The rules do authorize citation by publication in suits pending in a justice court. Rule 535 expressly provides for the service of citation by publication in justice court suits and specifies the time that the defendant shall file an answer when the citation is served by publication. Rule 523 provides that all rules governing district and county courts shall also govern the justice courts in so far as they can be applied, except where otherwise specifically provided by law or the rules. Under this provision Rule 109 authorizing citation by publication in district and county courts is also applicable to justice courts.
In response to question No. 2 as to whether non-resident notice is good process out of the justice court, it is our opinion that such notice has the same validity under the new rules as it did under the statutes.
In regard to question No. 3 as to writ of attachment issuing out of the justice court, it is our opinion that such writs are expressly authorized by Articles 275, 281 (not repealed) and282 (the unrepealed part). The form and procedure concerning such writs is outlined by Rules 592 to 609 in the section of the rules relating to attachment.
6 Tex. B.J. 164 (1943) reprinted in 8 Tex. B. J. 35 (1945).