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 may place the publication with a newspaper of his choice, 

or do the attorneys in such cases 

have the right to make the selection 

of the newspaper publishing the cltation. 

Your letter of November 20, 1943, requesting the oplnlon 

of this department on the questions stated therein, reads, in 

part, as follows: 

"In an ordinary civil suit, and not a tax 

suit, where citation is by publication, is it 

within the province of the Sheriff, and his duty 

to place the publication with a newspaper of his 

choice where there are several newspapers published In the County, or do the attorneys in the 

case have the right to select the newspaper in 

which the citation may be published? 

"The facts under which the controversy has 

arisen are that some of the newspapers have a 

flat rate on all publications, which is a cheaper 

rate than others, and of course the other newspapers are constantly after the Sheriff for their 

proportionate share of these publications, and 

you may well 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, OP do the attorneys In the case have 

the right to select them?" 

We have carefully considered Chapter 3, Title 42, Vernon's 

Annotated Civil Statutes, and the Rules of Practice and Procedure 

In Civil Actions promulgated by the Supreme Court of this State in 

connection with your inquiry< Many of the statutes contained in 
Honorable B. T. Walters, page 2 O-5725 

Chapter 3, Title 42, Vernon’s Annotated Civil Statutes, have been 

repealed or superseded by certain Rules of Practice and Procedure 

in civil actions, as promulgated by the Supreme Court of Texas, 

For the purposes of this opinion, we deem it 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any of these statutes or mention those that have been repealed or 

superseded by the Rules of Practice and Procedure in civil actions.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, we direct 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 by publication 

provides : 

“The citation, when issued, shall be served 

by the sheriff or any constable of any county 

of the State of Texas by having the same published 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 do not involve the title to land or the partition of real 

estate, such publication shall be made in the 

county where the suit is pending, If there be a 

newspaper published in said county, but if not, 

then in an adjoining county where a newspaper 

is published e In all suits which involve the 

title to land or partition of real estate, such 

publication shall be made in the county where 

the land, or a portion thereof, is situated, 

if there be a newspaper in such county, but if 

not, then in an adjoining county to the county 

where the land or a part thereof is situated, 

where a newspaper is published.” 

Rule 117 regarding the return of citation by publication 

provides: 

“The return of the officer executing such 

citation shall be indorsed or attached to the same, 

and show how and when the citation was executed, 

specifying the dates of such publication, be signed 

by him officially and shall be ac$ompanied by a 

printed copy of such publication. 

We have failed to find any case or cases by the appellate 

courts of this State passing upon a question 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 by publication are strictlyconstrued, since authority 

for citation by publication comes solely from statutes and rules 

promulgated by the Supreme Court and in cases falling within the 

provisions of the statutes or rules there must be a strict compliance with every essential requirement in res ect to service. 

(See State v. Bagby's Estate, 126 S.W. (2d) 6877 

The foregoing statutes and rules do not 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 by the sheriff or any constable of any county 

of the State by having the same published, etc., in accordance 

therewith and as Rule 115, supra, requires the officer executing 

such citation to show how and when the citation was executed by 

specifying the date of such publication to be signed by the officer executing the same officially, etc., It is our opinion that 

the sheriff or any constable executing the citation may publish 

such citation in any newspaper of his choice, provided, of course, 

such citation or citations must be published in such paper or'papers in compliance with the foregoing statutes and rules. 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 made in 

the county where the land, or portion thereof, Is situated, if 

there be a newspaper in such county, but if not, then in an adjoining county to the county where the land or a part thereof is 

situated. where a newspaper is published. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

AW:EP:wc 

APPROVED DEC 9, 1945 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

By s/Ardell Williams 

Ardell Williams 

Assistant 

Approved Opinion Committee By s/BWB Chairman