*1 6, 1947 my Eon. A. C. Winborn

Dlstrlct Attorney

Houston 2, Texas

attention: Honorable James Anderson, Jr.

Assistant Mstriot Attorney r-189 opinion lo.

Re: The neoessLty for alias olta- tlon where service has not been had ten days before ap- pearance day in Justice Court, under Supreme Court Rules 533 to 537.

Dear Sir:

Your request for an opinion upon the above sub- ject mmtter Is as follows:

"A greet deal of confusion has resulted in the local justloe of the peace courts from an interpretation of Rule8 and 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 ,get out a second citation in be necessary 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 Hon- d8j 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 repealed by Rule 107, the case of Mu v. II.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) holds th8t Rule 107 does not apply to justloe courts. Therefore, nothwithrtrndlug Rules and 537, Is Article 2036 still in effect for procedure in the jwtioe of the peace courts?"

Bon. A. C . Wlaborn - rege Ho. V-l&

T h e l drlr o rg o plrloa refer red to by ycm is es follas I

*emsmoB z In the Jurtiao Court uac30~ Rule8 end 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 the rty mthor thea to an effiesr of a Mmad coun y. r

“The ebova stetutsa relating to the Jua- tioe Court pro8odum did not require ten d8ya service of oftation, but Artiole 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 oer- vloe 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 be- fore 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 re- quired to en8wer et any time before 6 new cl- tatlon la served on him.”