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Rule 2. Scope of Rules (Dec1941)
These rules shall govern the procedure in the justice, county, district and appellate courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated. Where any statute in effect immediately prior to September 1, 1941, prescribed a rule of procedure in lunacy, guardianship, or estates of decedents, or any other probate proceedings in the county court differing from these rules, such statute shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in bond or recognizance forfeitures in criminal cases are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply. All statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in tax suits are hereby continued in effect as rules of procedure governing such cases, but where such statutes prescribed no rules of procedure in such cases, these rules shall apply.
Amended by orders of Sept. 20, 1941, eff. Dec. 31, 1941: The matter after the first sentence has been added.
|Prior Amendments||Future Amendments|
|Oct. 29, 1940, eff. Sept. 1, 1941||June 16, 1943, eff. Dec. 31, 1943|
|Aug. 18, 1947, eff. Dec. 31, 1947|
|April 10, 1986, eff. Sept. 1, 1986|
Question: In tax suits should citations be returnable and the defendant be cited to answer on the first Monday after the expiration of twenty days from service as required in Rule 101, or should the citations be returnable to the next regular term of court?
Answer: By virtue of the last sentence in Rule 2, Articles 7328.1 and 7345b, Section 3 (d), specifically stating the requisites of citations in tax suits, are continued in effect; and the citations issued in such cases should be returnable to the next term of court and otherwise conform to the provisions of the aforesaid statutes.
No opinion is given upon whether, in such a suit, a citation returnable according to Rule 101 would also be valid.
5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).
(No. 24) Question: In a tax suit is it permissible for citation issued for personal service to be made returnable on the Monday next after the expiration of twenty days from the date of service as provided in Rule 101?
Answer: Yes. The last sentence of Rule 2 provides that all statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in tax suits are continued in effect. Article 7328 provides that the defendants in tax suits "shall be served with process ... as provided by law' in ordinary foreclosure suits in the district courts of this state."
Said Article 7328 relating to procedure in tax suits was not repealed when the New Rules were adopted, and therefore under the last sentence of Rule 2 said procedure in tax suits is carried forward and remains in force, and by virtue thereof citation for personal service in a tax suit may properly be issued in conformity with Rule 101.
According to a previous Opinion (TEXAS BAR JOURNAL, Volume V, page 53). it was concluded that Article 7328.1, Section 5, which provides a specific form of citation to be used in tax suits, is still valid and in force by virtue of the last sentence in Rule 2. As above stated, however, citation by personal service in a tax suit will also be valid if issued in accordance with Rule 101, thus authorizing a cumulative Or additional form of citation in such a case.
5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).
(No. 38) Question: In tax suits is citation by publication controlled by Rules of Civil Procedure 114-116 or by the Statutes?
Answer: Article 7345b, Section 3 (d) specifically states the requisites of a citation which is to be made by publication in tax suits, and this article of the statute also specifically states the manner in which such a citation shall be served by publication and states that the defendant shall be cited to appear on the first day of the next term of court. By virtue of the last sentence of Rule 2, and also by virtue of Rule 110, this article of the statute is continued in effect; and inasmuch as this statute expressly provides for the requisites of such a citation and service differing from the provisions of the Rules it follows that under Rule 110 this statutory procedure for citation by publication in tax suits supersedes the general Rules on the subject of citation by publication. Therefore citations by publication in such cases should be returnable to the next term of court and should otherwise conform to the provisions of Article 7345b, Section 3(d).
However, we call attention to Section 13 of Article 7345b which states that:
"The provisions of this Act shall be cumulative of and in addition to all other rights and remedies to which any taxing unit may be entitled, but as to any particular proceeding brought under this Act, if any part or portion of this Act be in conflict with any part or portion of any law of the State, the terms and provisions of this Act shall govern as to such proceeding. "
It might be held under Subsection 13 that the method of citation by publication provided by Section 3(d) is cumulative of the method provided by Rules 114-116, and that either method is now permissible. However, this involves a construction of the meaning of the statute rather than a construction of the Rules, and it is not within the province of this Subcommittee to pass on such a matter.
5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 17 (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. 123) Question: Should citations in suits for delinquent taxes by taxing units under Article 7845 (b) be issued and served as provided in Article 2022 of the 1925 Revised Civil Statutes, or as provided in Rule 101 of the Texas Rules of Civil Procedure?
Answer: Article 2022 of the statutes was repealed by the adoption of the Rules of Civil Procedure (see enumeration of repealed statutes) and therefore said article is no longer in effect and can not be used as a guide for the issuance of citations. Said article did not relate specifically or particularly to tax suits, and therefore it is not continued in effect by that portion of Rule 2 providing that statutes prescribing rules of procedure in tax suits are continued in effect.
However, there were statutes in effect prescribing specific procedure for the issuance and return, of citations in tax suits at the time of the adoption of the rules, and therefore said statutes are continued in effect under the above provision of Rule 2. Therefore, in regard to citation by personal service in tax suits, cumulative methods are permissible, one method being prescribed by Rule 101 of the Rules of Civil Procedure, and the other procedure being prescribed by statutes which specifically relate to tax suits.
The subcommittee has heretofore given opinions upon this matter, and we refer you to the opinion appearing in 5 Tex. B.J. 53, and Opinion No. 24 appearing in 5 Tex. B.J. 168 .
See also Opinion No. 38 in 5 Tex. B.J. 171 relating to procedure in regard to citation by publication in tax suits.
7 Tex. B.J. 152 (1944) reprinted in 8 Tex. B.J. 46 (1945).
(No. 128) Question: Do the provisions of Rules 330 and 331 apply to district courts having successive and continuous terms and civil jurisdiction, even though they also have criminal jurisdiction?
Answer: We think the answer should be in the affirmative.
The enabling act (H. B. 108, 46th Leg.) conferred upon the Supreme Court "full rule-making power in the practice and procedure in civil actions." Rule 2 defined the scope of the rules to embrace and govern the procedure in the justice, county, district and appellate courts of the State of Texas "in all actions of a civil nature" with certain exceptions not now material. The rules did not purport to deal with questions of either jurisdiction or venue (Rule 816). The fact that the particular court in which the civil action was pending had both civil and criminal jurisdiction could not affect or impair the application of the rules to the civil action.
At the time the rules were formulated, there was a distinct trend toward successive and continuous terms of courts, as far as was permissible under the Constitution. That trend still persists. It was hoped at the time that the legislature would provide for successive and continuous terms and it did so in many cases. The rules in their general scope were devised to meet such a development.
Article 2092, which was repealed at the time the rules were adopted, provided certain rules of practice and procedure in civil district courts in counties having two or more district courts with civil jurisdiction only. In formulating Rule 330, it is significant that the word "only,” which appeared in Article 2092, was omitted, because the manifest intention was that the rules should apply to civil actions not only in courts having civil jurisdiction only but also in courts having both civil and criminal jurisdiction.
7 Tex. B.J. 282 (1944) reprinted in 8 Tex. B.J. 48 (1945).
Question: Where citation by publication is issued under Article 3592 in an action to declare heirship instituted under the provisions of Chapter 23, Title 54, relating to Estates of Decedents, should the citation be published in the manner and for the number of times specified in Rule of Civil Procedure 116, or should the citation be published as provided for in Articles 3310a and 3311 which regulate citations in all probate matters?
Answer: In our opinion a citation by publication in such an action to declare heirship should be published in accordance with the provisions of Articles 3310a and 3311. Rule of Civil Procedure 116 regulating service of citation by publication in ordinary civil suits has no application to probate matters.
Rule 2 expressly provides "Where any statute in effect immediately prior to September 1, 1941, prescribed a rule of procedure in lunacy, guardianship, or estates of decedents, or any other probate proceedings in the county court differing from these rules, and not included in the 'List of Repealed Statutes,' such statute shall apply." Articles 3310a, 3311 and Articles 3590-3592 were not listed as repealed, and therefore under the provisions of Rule 2 said Articles remain in full force and effect and govern the manner in which citation is served in all probate proceedings in the county court.
8 Tex. B.J. 219 (1945).