. 

my 6, 1947 

Eon. A. C. Winborn 

Dlstrlct Attorney 

Houston 2, Texas 

attention: Honorable James Anderson, Jr. 

Assistant Mstriot Attorney 

opinion lo. r-189 

Re: The neoessLty for alias oltatlon where service has not 

been had ten days before appearance day in Justice Court, 

under Supreme Court Rules 533 

to 537. 

Dear Sir: 

Your request for an opinion upon the above subject mmtter Is as follows: 

"A greet deal of confusion has 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 appearauce day, it will 

be necessary to ,get out a second citation in 

order to get the defendant Into court. 

"By Article 2036, In such a situation the 

defendant would have to plead at the next ten 

of court, and mother oltstion would not be 

necessary. In the justice court where thlr 

question has arisen, call da7 is the seoond Hond8j of each Month. While ArtLole 2036 hws been. 

repealed by Rule 107, the case of Mu v. II. A. 

James, Inc., 175 S. W. (2d) 74, holds th8t Rule 

107 does not apply to justloe courts. 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 dr lroro pg lr lroefe a r rto ed b y y c im s 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 subsequent tom? 

“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 oltatlons should be dlrwted to 

the 

r 

rty mthor thea to an effiesr of a Mmad 

coun y. 

“The ebova stetutsa relating to the Juatioe Court pro8odum did not require ten d8ya 

service of oftation, but Artiole 2381 provided 

that the ruk8 gaTernl8g MatriOt 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 

“Article 2036 provided that oititloma 

shsll be served before the Petum day thereof. 

The defendsnt shall not be required to 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, exoluslte of 

semLce.and returns, auah service shall oompel 

the defendant to plead at the naxt auooeedlng 

tena. 

“Art1018 2036 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 effective at all, 

the citation must be semed at least ten dogs 

before the sppearance day 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*a opinion snnounoes the 

true construotion of the Rulea. 

It follows, as you fear, that this construction 

will lead to consldereble delay end expense. This would 

seem to be 8 fitting opportunity to request the Supreme 

Coupt to emend the rulea Involved I 

This partloular problem was 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 following changes be 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. Appearanoe Day. -- Chenge Sppearance day In justice court to hsraonlze with 

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 appearance day 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