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my 6, 1947

Eon. A. C. Winborn DlstrlctAttorney Houston 2, Texas attention: Honorable James Anderson,Jr.

Assistant Mstriot Attorney opinion lo. r-189
Re: The neoessLtyfor alias oltatlon where servicehas not been had ten days before appearance day in Justice Court, under SupremeCourt Rules 533 to 537. Dear Sir:
Your request for an opinion upon the above subject mmtter Is as follows:

"A greet deal of confusionhas resulted in the local justloe of the peace courts from an interpretation of Rule8 533, 534, 535 and 537, contrlned in Volume X,, Ilo. 3, page 109, of the Texas Bar Jourarl. This art1018 seems to imply that if oitatlon is not served at least ten dars before appearauceday, it will be necessary to ,get out a second citation in order to get the defendant Into court. "By Article 2036, In such a situationthe defendantwould have to plead at the next ten of court, and mother oltstionwould not be necessary. In the justicecourt where thlr questionhas arisen, call da7 is the seoondHond8j of each Month. While ArtLole 2036 hws been. repealedby Rule 107, the case of Mu v. II. A. James, Inc., 175 S. W. (2d) 74, holds th8t Rule 107 does not apply to justloecourts. Therefore, nothwithrtrndlug

Rules 535 and 537, Is Article 2036 still in effect for procedure in the jwtioe of the peace courts?"Bon. A. C
.Wlaborn - rege 2, Ho. V-l&

follas I 

### The

l drlrorg o plrloa refer red

to by ycm is es

*emsmoB z In the Jurtiao Court uac30~ Rule8 533, 534, 535 end 537, ii a personal oltetion is aemved on l ppoannoe day, or on the day aubsequant,of the term to which it ia retwble, would it be good aenioa fan a subsequenttom? “AHSWER: No. The abae ruler worn taksn from Artlolea 2400, 2401, 2404 and 2009 of the Revised Statute8., The only chenge wlth~mferenoe to pan-1 oitatiolr wea that the oltatlonsshould be dlrwted to the r rty mthor thea to an effiesr of a Mmad coun y. “The ebova stetutsarelating to the Juatioe Court pro8odum did not require ten d8ya service of oftation,but Artiole 2381 provided that the **ruk8** gaTernl8gMatriOt Cot&a 8hould apply in the Juatloe Caurt in the iaaawe aad return of oltetion. “The Supreme C~ourt tn adopting thm,mata;a .took 8 part a? Article 2009, spplyi trict and County Courts aad In Rule P 

### 35 

# l pplLd it to Justice CouPta, requll@l~ to8 Oaya oervloe 0Ztatlona

0 “Article2036 provided that oititloma shsll be servedbefore the Petum day thereof. The defendsnt shall not be requiredto pleed at the return term of the Court unleaa the altetion be served et leeat ten days befora the first day of such term, exclusive of the days oi senioe end ratmn, but when 8 oltstlon is served before the return day thereo? and leas than ten days before the fLmt dsy o? atwh tern, exoluslteof semLce.and returns,auah service shall oompel the defendantto plead at the naxt auooeedlng tena. “Art10182036 was mpealsd by the rules and was not osrried into the new rules.Ron. A. C
.Winborn - Page 3, NO. v-189

“In view of the above It Is the opinion of the ccismlttee

that to be effectiveat all, the citationmust be semed at least ten dogs before the sppearanceday stated therein,and unless this is done the defendant is not required to en8wer et any time before 6 new cltatlon la served on him.”
We think the comoittee*aopinionsnnounoes the true construotionof the Rulea.

It follows,as you fear, that this construction will lead to consldereble delay end expense. This would seem to be 8 fitting opportunityto request the Supreme Coupt to emend the rulea Involved I This partloularproblemwas smong those dlacuaaed at a meeting of the Rules Committee of the State l!br sit tlng with the Supreme Court et Austin on April 25, 1947. As a result OS suck diaouaalon,it has been recommended by that group that the followingchangesbe msde in the rules:

“Rule 534.’ Cltetioa. -- Require CltstlOn in justice court to direct the defendant to answer on the first Monday after the expiration of 10 daya sfter the se@ce of citstlon.

. “Rule 537. AppearanoeDay. -- Chenge Sppearanceday In justicecourt to hsraonlzewith the ebove ,Amendment to rule 534. See Rule 237.”
SUHUARP Under Court Rules 533, 534, 535 and 537, a oitetion issued out of a Juatloe Court must be served et least ten d@ys before the appearanceday stated therein, end unless this Is done the .defendent 18 not mqulred to answer et any time before a new citstion is served on him.

. Pours very truly