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# The Attorney General ofTexas
February 26, 1982 MARK WHITE Attorney General

Supreme Cart Building P. 0. Box 12546 Aus,,“, TX. 76711. 2546 512/475-2501 Telex 9101674.1367 Telecopier 512/475-0266

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An Equal Opportunity/ Affirmative Action Employer HonorableMike Driscoll Harris CountyArcorney 1001Preston.Suire 634 Houston,Texas 77002 OpinionNo. MW-452
lte: Duty of county clerk of Harris county to serve citation by publication in eminent domain and probate matters and relatedquestions

DearMr. Driscoll:

You have asked if ic is the duty of the county clerk of Harris County to effect service of citationby publication in eminent domain actions or probate matters. and if so, what fee rhe clerk is authorizedto-charge therefor;
With respect to eminent domain matters, section 6 of 3266.V.T.C.S..provides:

If either party be dissatisfiedwith the decision [of special commissioners in. condemnation proceedings],suchpartymay... filehis objection thereto in writing... and thereupon the adverse party shall be cited and the cause shallbe tried and determined as in other civil causes.... (Emphasisadded). article

The Texas Rules of Civil Procedure govern citations in civil causes;Rules 114, 115. and 116 speak to citationsby publicationand their service. See also Rule 109. Rule 116 states: "The citation, when issued, shall be served by the sheriff or any constable of any countyof the Stare of Texas...."
Prior to January 1, 1981, this language dovetailed neatly with Rule 103 which designated sheriffs and constables as those officers authorizedto serveprocess in general, andwith Rule 106which speaks to the manner of serving citations in particular. But in 1980, the Texas Supreme Court amended Rules 103 and 106, effective January 1, 1981,by addingthe emphasized languagebelow, interalia:

Rule 103. OfficerWho May Serve
All process may be served by the sheriff or any constableof any county in which theparty to

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be served is found, or'.if by mail. either of the county in which the case is pending or of the county in which the party to be served is found; provided that no officer who is a party to or interested in the outcome of a suit shall serve any process therein. Service by registered or certifiedmail and citationby publicationmay be made by the clerk of the court in which the case is pending.
Rule 106. Service of Citation (a) Unless the citation or an order of the court otherwise directs, the citation shall be servedby any officerauthorizedby Rule 103....
See Pope and McConnico. Practicing Law with the 1981 Texas Rules, 32 Baylor Law Rev. 457, 485 (1980). Rules 114, 115, and 116 were not amended.

In our opinion, it is now the duty of the county clerk of Harris County, if properly called upon, to effect service of citation by publication in eminent domain actions. See Rule 109, T.R.C.P. We thinkRules 103and 106,which togethernowypressly authorizeclerks of court in pending cases to effect service of citation by publication, would effectively supercede any provision of Rule 116 that might conflict therewith. Rule 110. T.R.C.P. See Kimbrough v. u, 256 S.W.2d 202 (Tex. Civ. App. - Eastland 1953. writ ref'd n.r.e.1. But in our opinion, there is no conflictbetween them. A*Y seeming conflictbetween Rules 106 and 116 is resolvedby recognizing that the phrase in Rule 116 reading, "[t]he citation, when issued, shall be served by the sheriff or any constable....,"is intended to express the mandatory nature of the duty imposed upon officers empowered to effect service of citation by publication, see Cook v. Jones, 521 S.W.2d 335 (Tex.Civ.App. - Dallas 1975,dismissedas moot on rehearing), and not to restrict those who might be authorized to effect service of citation by that method. Rules of civil procedure are to be construed so as to produce harmony rather than discord. Ex parte Godeke, 355 S.W.2d 701 (Tex. 1962);Russellv. HartfordCasualty InsuranceCompany, 548 S.W.2d 737 (Tex.Civ.App. - Austin 1977,writ ref'dn.r.e.). Until it was amended in 1980, "the sheriff and any constable" were the only officers specifiedby Rule 103 for effecting service of process of any kind. Even then, however, Rule 104 allowed the judge of a court in which a cause was pending to direct by order that "all process" be served by a resident citizen if there was no officer qualified to do so in a particular case. A person so designatedhad "full power and authority as an officer of the court to execute any suchprocess orwrit and make due return thereofas in other cases" -- a powerwhich included, in our opinion,authority to effect serviceof

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citationby publication. Thus, it is clear that the Rule 116phrase, “shall be servedby the sheriff or any constable,”was never intended to forbid the use of other persons to effect service of citation by publication. Of course. the requisites of Rules 109, 111, 112, 113, 114, 115, 116 and 117. as well as Rule 244, must be satisfied regardless of who may be authorized to effect service of citationby that method. Cf. South Texas ‘DevelopmentCompany v. Martwick. 328 S.W.2d 230 (Texxiv. App. - Waco 1959.writ ref’d n.r.e.) (authoritv for citationby publicaiionstrictly construed).
The situation with respect to probate matters is somewhat different, but the result is the same: It is now the duty of the county clerk of Harris County, if properly called upon, to effect service of citationby publication inprobatematters.
Rule 2 of the Texas Rules of Civil Procedure states that where “any statute in effect immediately prior to September 1, 1941” prescribed a rule in any probate proceeding, the statute, if not theretofore repealed, would apply rather than the Rules of Civil Procedure. Those statutes have since been superceded by the Texas Probate Code. Section 33 of the Probate Code now sets out the requisites of citationand service in probatematters,but provides in subsection (d):

In all situations in which this Code requires... that a person be cited, and in which a specific method of..

. citing such person. or a specific method of service and return of such citation... is not given, or an insufficient or inadequate provision appears with respect to any such matters, or when any interested person so requests, such... citation shall be issued, served, and returned in such manner as the court, by written order, shall direct in accordancewith this Code and the Texas Rules of Civil Procedure, and shallhave the same force and effect as if the manner of serviceand return hadbeen specified in thisCode. (Emphasisadded).
The Probate Code, section 33(f)(3), provides for citation by publication but it does not specify the persons authorized to effect such service. Section 33(c) states that citations shall be directed to the person or persons tobe cited, but that no precept directed to an officer is necessary (though a citation containing a precept directed to an officerauthorized to serve it is not to be considered defective for that reason). In our opinion,Rules 103, 106, 109, and 110 are to be read with the pertinent provisions of the Probate Code and, when so read, the clerk’s duty to serve citation by publication in probate proceedings, if properly called upon to do so, becomes clear. See Nass v. Nass, 228 S.W.Zd 130 (Tex. 1950);Katz v. Katz, 613 S.W.2d60 (Tex.Civ.App. - Beaumont 1981,no writ).

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There are no statutes which specify a particular charge to be made by county clerks for effecting service of citation by publication,but section 3 of article 3930(b),V.T.C.S.,as amended in 1981, states that a county clerk or clerk of court servingprocessby certified or registeredmail is to charge the same fee that sheriffs and constablesare authorized to charge therefor. (Such fees are to be set in reasonable amounts by the commissioners court. V.T.C.S. art. 3926a.) And section (10)of article 3930.V.T.C.S.,also amended in 1981,authorizesand requires county clerks to collect “reasonable fees” for performing on behalf of persons, firms, corporations,legal entities, governmental agencies and/or governmental representatives “other duties prescribed, authorized, and/or permitted by the legislatureforwhich no fee is set.” (Emphasisadded).
By enacting article 1731a. V.T.C.S., the Rule Making Act, the legislaturehas “permitted” the duties of clerks to be altered and prescribedby the Rules of Civil Procedure promulgatedby the supreme court. See GarrettV. MercantileNational Bank, 168S.W.2d 636 (Tex.

- 1943). Cf. Tex. Const. art. V, 925. We conclude that clerks are authorizedand required by article 3930. section (10). to collect reasonable fees for effecting service of citation by publication. They should charge the same fees that sheriffs and constables are authorized to charge for such service.
SUMMARY
If properly called upon to do so, it is the duty of the county clerk of Harris County to effect service of citation by publication in eminent domain actions and probate proceedings. For doing so, the clerk should charge the same fees as the sheriff or constable is authorized to charge. 

# &*

WHITE AttorneyGeneralof Texas
JOHNW. FAINTER,JR. FirstAssistantAttorneyGeneral
RICHARDE. GRAY III ExecutiveAssistantAttorneyGeneral Preparedby BruceYoungblood AssistantAttorneyGeneral

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APPROVED: OPINION COMMITTEE
SusanL. Garrison. Chairman Jon Bible Rick Gilpin PatriciaHinojosa Joe Jarrard Jim Moellinger Bruce Youngblood

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