c 

The Attorney General of Texas 

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 

1607 Main St.. Suite 1400 

Dallas. TX. 752U1-4709 

2141742.8944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 76905.2763 

91515333464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002-6986 

7 1 mm0666 

606 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

8061747-5236 

4309 N. Tenth, Suite S 

McAllan, TX. 76501.1665 

5121662.4547 

200 Main Plaza. Suite 400 

San Antonio, TX. 76205-2797 

5121225-4191 

An Equal Opportunity/ 

Affirmative Action Employer 

Honorable Mike Driscoll 

Harris County Arcorney 

1001 Preston. Suire 634 

Houston, Texas 77002 

Opinion No. MW-452 

lte: Duty of county clerk of 

Harris county to serve 

citation by publication in 

eminent domain and probate 

matters and related questions 

Dear Mr. Driscoll: 

You have asked if ic is the duty of the county clerk of Harris 

County to effect service of citation by publication in eminent domain 

actions or probate matters. and if so, what fee rhe clerk is 

authorized to-charge therefor; 

With respect to eminent domain matters, section 6 of 

3266. V.T.C.S.. provides: 

If either party be dissatisfied with the decision 

[of special commissioners in. condemnation 

proceedings], such party may... file his objection 

thereto in writing... and thereupon the adverse 

party shall be cited and the cause shall be tried 

and determined as in other civil causes.... 

(Emphasis added). 

article 

The Texas Rules of Civil Procedure govern citations in civil 

causes; Rules 114, 115. and 116 speak to citations by publication and 

their service. See also Rule 109. Rule 116 states: "The citation, 

when issued, shall be served by the sheriff or any constable of any 

county of the Stare of Texas...." 

Prior to January 1, 1981, this language dovetailed neatly with 

Rule 103 which designated sheriffs and constables as those officers 

authorized to serve process in general, and with Rule 106 which 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 adding the emphasized language below, inter alia: 

Rule 103. Officer Who May Serve 

All process may be served by the sheriff or 

any constable of any county in which the party to 

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,._,,. “’ 

: 

Honorable Mike Driscoll - Page 2 (MW-452) 

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 

certified mail and citation by publication may 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 

served by any officer authorized by 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 

think Rules 103 and 106, which together nowypressly authorize clerks 

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 conflict between them. A*Y 

seeming conflict between Rules 106 and 116 is resolved by 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, dismissed as 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); Russell v. Hartford Casualty 

Insurance Company, 548 S.W.2d 737 (Tex. Civ. App. - Austin 1977, writ 

ref'd n.r.e.). 

Until it was amended in 1980, "the sheriff and any constable" 

were the only officers specified by 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 designated had 

"full power and authority as an officer of the court to execute any 

such process or writ and make due return thereof as in other cases" -- 

a power which included, in our opinion, authority to effect service of 

p. 1566 
Honorable Mike Driscoll - Page 3 (Mu-452) 

citation by publication. Thus, it is clear that the Rule 116 phrase, 

“shall be served by 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 citation by 

that method. Cf. South Texas ‘Development Company v. Martwick. 328 

S.W.2d 230 (Texxiv. App. - Waco 1959. writ ref’d n.r.e.) (authoritv 

for citation by publicaiion strictly 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 citation by publication in probate matters. 

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 citation and service in probate matters, 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 accordance with 

this Code and the Texas Rules of Civil Procedure, 

and shall have the same force and effect as if the 

manner of service and return had been specified in 

this Code. (Emphasis added). 

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 to be cited, but that no precept directed to 

an officer is necessary (though a citation containing a precept 

directed to an officer authorized 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). 

p. 1567 
Honorable Mike Driscoll - Page 4 (MU-452) 

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 serving process by 

certified or registered mail is to charge the same fee that sheriffs 

and constables are 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, authorizes and 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 

legislature for which no fee is set.” (Emphasis added). 

By enacting article 1731a. V.T.C.S., the Rule Making Act, the 

legislature has “permitted” the duties of clerks to be altered and 

prescribed by the Rules of Civil Procedure promulgated by the supreme 

court. - See Garrett V. Mercantile National Bank, 168 S.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 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Bruce Youngblood 

Assistant Attorney General 

P. 1568 
Honorable Mike Driscoll - Page 5 (MW-452) 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison. Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hinojosa 

Joe Jarrard 

Jim Moellinger 

Bruce Youngblood 

p. 1569