EXEA~ORNEY GENERAL

OFTEXAS

Honorable B. T. Walters County Auditor, Smith County Tyler, Texas

Dear **Sir:** Opinion No. O-5725, Re: Whether in ordinary civil suits where citation Is by publication, the sheriff mayplace the publication with anewspaper of his choice,

or dothe attorneys in such cases have the right to makethe selection of the newspaper publishing the cltation.

Your letter of November 20, 1943, requesting the oplnlon of this department onthe questions stated therein, reads, in part, as follows:

"In anordinary civil **suit,** andnot atax suit, where citation is by publication, is it within the province of the Sheriff, and his duty to place the publication with anewspaper of his choice where there are several newspapers published In the County, or dothe attorneys in the

case have the right to select the newspaper in which the citation maybe published?

"The facts under which the controversy has arisen are that someof the newspapers have a flat rate onall publications, which is acheaper rate than others, and of course the other newspapers are constantly after the Sheriff for their proportionate share of these publications, and you maywell imagine that the litigants are interested in the cheapest rate in order to hold the cost down. Again, is it the duty of the Sheriff to select the newspaper to publish these cltatlons, OPdo the attorneys In the case have the right to select them?"

Wehave carefully considered Chapter 3, Title 42, Vernon's Annotated Civil Statutes, andthe Rules of Practice and Procedure In Civil Actions promulgated bythe Supreme Court of this State in connection with your inquiry< Manyof the statutes contained inHonorable B. T. Walters, page 2 O-5725

Chapter 3, Title 42, Vernon’s Annotated Civil Statutes, have been repealed or superseded bycertain Rules of Practice and Procedure in civil actions, as promulgated bythe Supreme Court of Texas, For the purposes of this opinion, wedeemit unnecessary to quote any of these statutes or mention those that have been repealed or superseded by the Rules of Practice and Procedure in civil actions. In connection with your request, wedirect your attention to the following Rules of Practice and.Procedure in civil actions: Nos. 15, 101, log, 110, 111, 112, 113, 114, 115, 116, and 117.

Rule 116 regarding service of citation bypublication provides :

“The citation, whenissued, shall be served by the sheriff or any constable of any county of the State of Texas by having the samepublished once each week for four (4) consecutive weeks

, the first piiblication to be at least twenty-eight (28) days before the return day of the citation. In all suits which donot involve the title to land or the partition of real estate, such publication shall bemadein the county where the suit is pending, If there be a newspaper published in said county, but if not, then in anadjoining county where anewspaper is published e In all suits which involve the title to land or partition of real estate, such publication shall be madein the county where the land, or aportion thereof, is situated, if there be anewspaper in such county, but if not, then in anadjoining county to the county where the land or apart thereof is situated, where anewspaper is published.”

Rule 117regarding the return of citation bypublication provides:

“The return of the officer executing such citation shall be indorsed or attached to the same, and showhowandwhenthe citation was executed, specifying the dates of such publication, be signed by himofficially andshall be ac$ompanied bya printed copy of such publication.

Wehave failed to find any case or cases bythe appellate courts of this State passing upon aquestion either identical or similar with the questions presented in your inquiry, under Chapter 3, Title 42, Vernon’s Annotated Civil Statutes, or the Rules of Practice and Procedure in Civil Actions as promulgated. by the Supreme Court of this State.=--

Honorable B, T, Walters, page 3 O-5725

Generally speaking, the statutes or rules authorizing citation bypublication are strictlyconstrued, since authority for citation bypublication comes solely from statutes andrules promulgated bythe Supreme Court and in cases falling within the provisions of the statutes or rules there must be astrict compliance with every essential requirement in res ect to service. (See State v. Bagby's Estate, 126S.W. (2d) 6877

Theforegoing statutes andrules donot specifically provide whether the sheriff or the attorneys in civil cases may choose the newspaper in which the publication of the"cltation Is made. However, as Rule 116, supra, requires the citation, when issued, to be served bythe sheriff or any constable of any county of the State by having the samepublished, etc., in accordance therewith andas Rule 115, supra, requires the officer executing such citation to showhowandwhenthe citation was executed by specifying the date of such publication to be signed bythe officer executing the sameofficially, etc., It is our opinion that the sheriff or any constable executing the citation maypublish such citation in anynewspaper of his choice, provided, of course, such citation or citations must be published in such paper or'papers in compliance with the foregoing statutes andrules. Stated another way, provided such papers are situated in the county where the suit is pending or in suits where the title to land OP partition of real estate is involved such publication must be madein the county where the land, or portion thereof, Is situated, if there be anewspaper in such county, but if not, then in anadjoining county to the county where the land or apart thereof is situated. where anewspaper ispublished.
Very truly yours

ATTORNEY

GENERAL

OFTEXAS

AW:EP:wc

APPROVED

DEC9, 1945 s/Grover Sellers FIRSTASSISTANT ATTORNEY

GENERAL By s/Ardell Williams Ardell Williams Assistant

Approved Opinion Committee Bys/BWBChairman