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**Gl~St?HIZI.** 

### October 26, 1951

**Hon.** 

### Robert S. Calvert Opiniou No. V-1332, Comptroller of Public Accounts Austin, Texas Re: 

### Ad valorem personal property tax suits. Dear Mr..Calvert:

You submit for the opinion of this office the questions contained in the letter 

### addressed to 

### you by Ha3. Ralph W. Kinsey. delinquent tax attorney of Daweon County. These questions are as followr: 

### 1. la a 

### perroaal propertg: suit filed in theJurtice of PEsce Court would the appearanew date be the Brat Monday after 10day8 or the fir& Imtondayafter 

### 20day8 from date of service?


### 2. Since in moat par6onal property suite it i6 difficult or impoaeible to,determine what type’of 

### property 

### has 

### been taxed,. unless 

### the rendition or ael)eaa

### meat rheets are available because the tax rolls 

### show the property 

### under the caption personal or 

### miscells8~008 without other aescription,. io it carrect aad per

### missible tolist the entirelist a6 rhown inArticle 7328.1 sectiou 2 ln the citation 4lld 

### petition?

‘3. Dothe provlrioar of Section 2, Artleii 

### 7345b, V.C.S., requiring 

### thnimpleading or tmtificatti 

### ofother ta16bagunite hsvirrg delbquent 

### ad vdlorem tax claim6 rgdaat 

### the **property** 

### involved la the rult, apply to pereonal property tax suita?
Your 

### second quertion has huretofore 

### been answered in part by,thir office in Opinion V-l 120 (1930), a copy ofwhich Jreaclosed for your 

### information. In that 

### opinion it

### was held 

### that pereonal property tax suit6 

### need only dercrlbe the propecty 

### ia general termu, but thir doe6 sot mean that 

### thblist eet out in **Article** 

### 7328.1. V.C.S., may be used, ae ruggested in your letters, in each citetion. without regard to the 

### kind bf **peroonal** 

### property upon which thetax is delinquent Ln

### a particular c4ae. 

### The deecrlption in the &atiooa 

### should bo SutiSciraItl~deflulte to oatable 

### tba defer&ant 

### todetrrmlaa yhdu~r ihe ~s~amnaat 18 ag4Sn4t **poporty** 

### owned 

### byhim..

Hon. Robert S. Calvert, Page 2 (V-1332)

We shall answer y&r first and third question8 in their order.
The provisions of‘Rule 117apromulgated by the Supreme Court applicable to delinquent tax suits apply with equal force to suits to collect delinquent taxes on personal property a8 theydo to the collection of delinquent taxes on real property.

lows: Subdivision 6 of Rule 117aprovides, in part, a6 fol-

‘“Theform of citation for personal service shall be,sufficient if it is in substantihlly the following form, with proper: changes to make the same applicable to personal property, where necessary, and If the suit includes or 1sfor the recovery of taxes assessed on personal property, a general description of such personal property shall be sufficient;

. . .” (Emphasio added.)
The rule then proceeds to preecribe a form if citation, andwhile this form is referable to the district court. we perceive novalid reason why it could not appropriately be adapted for use in thejustice **court.** Substitution of thejustice **court** for the district court is one of the “eroper change* to make the same applicable topersonal property, where the suit for collection of delinquent peroonal property taxes 16brought in thejustice **court.**

The citation requires the defendant to appear and answer at or before 10:00**o ’** **clock** a.m. of the **Monday next**  after the expiration df 20days from the,date of service of citation. This conflicts ~withRule 534governing citation generally in suits in the justice **court** in that Rule 534requires the defendant ~toappear and answer the,plaintiff’s suit on theMonday ne’xtafter the expiration of 10days from the date of service, We are of~tbe opinion, however, that the effect of Rule 117a, which is applicable specifically toall delinquent tax **suits,** canstitutee an exception to Rule 534goverzg citations gerberally in &its filed in the**justice** court. Sub’- division 1of Rule 117aprovides **that** proceos **b9 personal**  **oervice** intax **suit6** shall be “Served and returned and otherwise regulated by the provisiona 4 Rules **99** to 107,inclusive.” Rule 101~ require6 thatthe defendant be commanded to appear and answer the plaintiff’s petition *at or before 10o’c1ockp.m. of the Monday **next** after the expiration of 20 day6 from thd~dateof 6ervice.” It **16** our opinion, therefore, that Subdivision 6 of Rule 117ais applicable to s&s filed for delinqdent taxes on personal property in thejustice Court and thatthe defendant should be cited tom appear and an6wer a6 therein provided, namely, **at** or before 10:00 o’clock **a.m. of**  the Monday next **after** the expiration of 20 day6 from the date of service of the citation.**I** Hon. Robert S. Calvert, Page 3 (V-1332)

In answer toyour third question, we think it is apparentfrom the provisions ofArticle 7345b, **V.C.S.,** that it was the intention of the Legi,slature ttit this article apply exclucively to suits for the collection’of delinquent taxee against real property and notto suits for the collection of delinquent taxes on personal property. We do not mean to say that taxes owing by a delinquent taxpayer on personal property may notbe included in the same suit for delinquent taxes owing by him on his real property, but the provisions of Article 3345b relating to the impleading or notification of other taxing units apply only to suits for delinquent taxes on real property, Therefore, in anseer t0your third question, you are a.dvised thatthe county **8ttornep** or other attorney employed by the’county **under** contract for the collection ofdelinquent takes should disregard the provisions of Article 7345b in filing suits for delinquent taxes on personal property, **regardless** ofwhether the suit is filed in district court, county **cburt, or**  **jus** tke **court.** SUMMARY

Citations in personal property tax suits need only describe theproperty in general terms. The description in the citation should be sufficiently definite to enable the defendant to determine whether the assessment is against property owned **by** him. Rule 1178. Ten. Rules Civ, Proc;j Att’y Gen. Op. V-1120 (1950).
Rule 117aof theRules of Civil Procedure governs as to citation5 in delinquent tax suits on personal property filed injustice court, requiring the defendant to appear and answer at or before 10:00 o’clock **a.m.** of theMonday next after the expiration of 20 days from the date of service, and **not** as provided by Rule 534 governing citations generally in **suits** injustice **court.** Article 3345b.V.C.S., does notapply to suits for the **colioctton** of delinquent taxes on personal property, **but** appliee only to **sutts** for the collection of taxes on real propertyA
APPROVED1

**w. v.**  **Geppcrt** Taxation Division Yours very truly,
PRICE DANIEL

Everett Hutchinson
**&eCUtiVe AgaiSt8at**  Charles D. M&hews First Aasietant **By** ?g? 2T&a*.J L. ‘P. &Dar Assistant

LPL/mwb Epcl.