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Rule 15. Writs and Process
The style of all writs and process shall be "The State of Texas;" and unless otherwise specially provided by law or these rules every such writ and process shall be directed to any sheriff or any constable within the State of Texas, shall be made returnable on the Monday next after expiration of twenty days from the date of service thereof, and shall be dated and attested by the clerk with the seal of the court impressed thereon; and the date of issuance shall be noted thereon.
Source: Art. 2286.
Change: Elimination of the former requirement that the writ be addressed to the sheriff or any constable of a specific county and that the writ be returnable to a term of court. Compare Rule 101.
Oct. 29, 1940, eff. Sept. 1, 1941.
(No.26) Question: Should a Writ of Sequestration specify when it should be returned by the officer, and if so when should it be made returnable?
Answer: Rule 699 setting out the requisites of a Writ of Sequestration does not expressly state when the Writ should be made returnable, but Rule 15 states that unless otherwise specially provided by law or by the Rules all writs and process "shall be made returnable on the Monday next after the expiration of twenty days from the date of service thereof." Therefore, a Writ of Sequestration should state when it is returnable, and should comply with Rule 15 and be made returnable on the Monday next after the expiration of twenty days from the date of service thereof.
5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 13 (1945).
(No. 28) Question: Should a citation by publication contain the direction that if it is not served within ninety days from the date of issuance, it shall be returned unserved as provided in Rule 101?
Answer: Yes. Rule 114 provides that where citation by publication is authorized it "shall contain the requisites prescribed by Rules 15 and 101 insofar as they are not inconsistent herewith." One of the requisites of an ordinary citation prescribed by Rule 101 is the following:
"The citation shall further direct that if it is not served within ninety (90) days after date of issuance, it shall be returned unserved."
It is not inconsistent with requirements of Rule 114 to incorporate this requisite of an ordinary citation in the citation by publication and it should, therefore, be included.
5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 13 (1945).
(No. 57) Question: In view of Rule 819, which declares that procedural statutes not listed in the enumeration of repealed articles shall continue as rules, is Article 4639a, providing for notice of contempt proceedings where a parent has been ordered to support minor children, governed by Rules 2, 15, and 101, the latter two rules requiring process to be answered on the first Monday succeeding twenty days after service?
Answer: We consider that notice of such a contempt proceeding is not governed by general Rules 15 and 101 as to time and that Rule 2 is not inconsistent with this conclusion. This particular matter is special, and favors prompt rather than delayed action because it involves the support of minor children. Since the amendment of the cited article (Acts 1941, 47 Legislature, H. B. No. 750) the latter consideration is again emphasized; if the amendment is valid in view of Art. III, Sec. 36 of the Constitution, the judge may even hold the contempt hearing in vacation.
5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 23 (1945).
(No. 115) Question: Rule 114 relating to citation by publication provides that the citation shall contain the requisites prescribed by Rules 15 and 101, provided no copy of the plaintiff's petition shall accompany the citation and that the citation "shall be directed to the defendant or defendants by name." The rule further provides that the citation, among other things, "shall contain the names of the parties." Is it necessary that the names of the defendants be stated twice in the citation, i.e. (1) In the direction of the citation and (2) in stating the names of the parties to the suit?
Answer: We are of opinion that it is unnecessary that the names of the defendants be stated twice in the citation, assuming that all the defendants are cited by publication. All parts of the, citation must be construed together. The portion of the citation indicating the names of the defendants to whom the writ is directed, is a part of the citation. Since a citation by publication is not accompanied by a copy of the plaintiff’s petition as is required in the case of citation in general, which petition discloses the names of the parties, the requirement of Rule 114 that the names of the parties be stated is designed to appraise the defendants not only as to who the plaintiffs are but also who the co-defendants are. No good purpose can be served by requiring that the names of the defendants be stated twice in the citation.
We are, therefore, of the opinion that a citation by publication directed to the defendants by name and which elsewhere in the body of the citation sets forth the names of the plaintiffs followed by the statement, in substance, that the defendants are those persons first named in the writ and to whom it is directed, complies with the requirements of Rule 114.
If there are other defendants, who are personally served, their names, of course, should appear in stating the names of the defendants by adding after the words “to whom it is directed,” as used in the preceding paragraph, some such wording as the following: “and (naming such other defendants) who are being (or have been) personally served with citation (or in any different manner authorized by law other than by publication).”
7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 42 (1945).
Question: (1) In guardianship proceedings in the County Court should the citation required by Article 4116, Vernon Statutes, as amended, for minors over fourteen years of age be directed to the minor or should it be directed to any sheriff or any constable within the State of Texas, or should it be directed to the sheriff or any constable of the county within which the minor appears to be at the time?
(2) In such proceeding as is assumed in Question No.1 above should the notice required by Article 4114, Vernon Statutes, as amended, be directed to the sheriff or any constable of the county within which the proceeding is pending, or should notice be directed to any sheriff or any constable within the State of Texas?
Answer: Articles of the Statutes Nos. 2021, 2022, 2228 and 2286 have been expressly repealed.
Article 2286 provided in substance that all writs and processes should be directed to the sheriff or any constable of the proper county. Since this Article has been repealed, it appears that Rules 15 and 101 now contain the sole provisions in respect to the form and contents of writs and citations.
It is true that Rule 2 preserves the rules of procedure in guardianship proceedings as provided by a statute, but there seems to be no article in the probate statutes providing to whom a citation should be directed. Article 3310 sets forth the requisites of citation in probate but does not state to whom the citation should be directed. This is true also in respect to Articles 3310a, 3311, 3333, 4414, 4415 and 4416. Article 3333 does state to whom the Clerk is to deliver the citation, stating that it shall be delivered to the sheriff or constable of the proper county.
Since Article 2286 has been superseded by Rules 15 and 101, and since the probate articles do not contain an express provision as to whom the notice or citation should be directed, it is the opinion of the Committee that the notice required by Article 4114 and the citation provided by Article 4116 should be directed to any sheriff or constable within the State of Texas.
10 Tex. B.J. 271 (1947).