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Rule 108. Defendant Without State (1976)

TEXT

Where the defendant is absent from the State, or is a nonresident of the State, the form of notice to such defendant of the institution of the suit shall be the same as prescribed for citation to a resident defendant; and such notice may be served by any disinterested person competent to make oath of the fact in the same manner as provided in Rule 106 hereof. The return of service in such cases shall be endorsed on or attached to the original notice, and shall be in the form provided in Rule 107, and be signed and sworn to by the party making such service before some officer authorized by the laws of this State to take affidavits, under the hand and official seal of such officer. A defendant served with such notice shall be required to appear and answer in the same manner and time and under the same penalties as if he had been personally served with a citation within the State to the full extent that he may be required to appear and answer under the Constitution of the United States in an action either in rem or in personam.

Amended by order of July 22, 1975, eff. Jan. 1, 1976: The words after "State" in the last sentence are new. Its purpose is to permit acquisition of in personam jurisdiction to the constitutional limits.

ADVISORY OPINIONS

(No. 25) Question: Should the official or party making his return on a citation or notice as provided for by Rules 107 and 108 show in such return that the copy delivered to the defendant had endorsed thereon the date of such delivery as is provided for in Rule 106?

Answer: In view of the fact that Rule 107 requires the return to show "the man­ner of service," we are of the opinion that the return should show that the date of delivery was endorsed on the copy of cita­tion or notice in accordance with Rule 106, because Rule 106 makes such en­dorsement a part of the manner of service.

5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).

(No. 95) Question: First - Do the New Rules authorize citation by publication in suits filed in justice courts? Second - Does non-resident notice constitute good process out of the justice court? Third - Do the New Rules authorize the issuant of writ of attachment out of justice courts?

Answer: The rules do authorize citation by publication in suits pending in a justice court. Rule 535 expressly provides for the service of citation by publication in justice court suits and specifies the time that the defendant shall file an answer when the citation is served by publication. Rule 523 provides that all rules governing district and county courts shall also govern the justice courts in so far as they can be applied, except where otherwise specifically provided by law or the rules. Under this provision Rule 109 authorizing citation by publication in district and county courts is also applicable to justice courts.

In response to question No. 2 as to whether non-resident notice is good process out of the justice court, it is our opinion that such notice has the same validity under the new rules as it did under the statutes.

In regard to question No. 3 as to writ of attachment issuing out of the justice court, it is our opinion that such writs are expressly authorized by Articles 275, 281 (not repealed) and282 (the unrepealed part). The form and procedure concerning such writs is outlined by Rules 592 to 609 in the section of the rules relating to attachment.

6 Tex. B.J. 164 (1943) reprinted in 8 Tex. B. J. 35 (1945).

Question: Under Rules 101, 107, and 108 of the Texas Rules of Civil Procedure, is it necessary for the validity of the citation that a copy of the citation upon which the officer makes his return and files in the court be accompanied by a copy of the plaintiff's petition?

Answer: In the opinion of the com­mittee, the answer is "No."

The purpose of the provision that the citation should be accompanied by a copy of the plaintiff's petition is to give the defendant notice, at the time of service, of the nature of the plaintiff's demands. This purpose is accomplished when a copy of the plaintiff's petition is served on the defendant, and to require that another copy be filed in the papers of the Court with the officer's return would be use­less. The original petition is already on file to be referred to if necessary and the filing of copies thereof attached to the citation would unnecessarily increase the files and would serve no purpose.

The language of Rule 101, which states that the citation "shall be accompanied by a copy of the plaintiff's petition" in­dicates that a copy of the plaintiff's pe­tition is not considered as a part of the citation. Likewise in Rule 107, with refer­ence to the return on the citation, it is provided: "it shall state when the citation was served and the manner of service and shall certify that a true copy of the cita­tion with the accompanying copy of the petition was delivered to the defendant and was signed by him officially." This would indicate that the accompanying copy of the petition was not a part of the citation itself, otherwise it would not be necessary for the officer in his return to certify that a true copy of the petition was delivered to the defendant. Rule 107 provides that the officer executing ,the citation shall make his return thereon or attach it thereto, and there is no provision in Rule 107 providing that a copy of the plaintiff's petition should accompany the sheriff's or other officer's return thereon.

Rule 101 further provides that the party filing any pleading upon which cita­tion is to be had shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served and this, in the opinion of the committee, requires only one copy for each of the parties to be served. The inference being that the parties defendant are each to be served with a copy of the petition but no provision is made for extra copies to be used by the officer serving the citation and attached to his return thereof.

Prior to the effective date of the Rules of Civil Procedure, Articles 2037 and 2038 of the Statutes applied in notices to serve non-residents. Article 2037 provided that the notice shall state that a copy of the plaintiff's petition accompanies the notice and that a certified copy of plaintiff's petition shall accompany the notice. Ar­ticle 2038 provides that the defendant shall be delivered a true copy of the notice, together with a certified copy of the plaintiff's petition. Within the knowledge of the committee, it has always been the custom of the clerks under such Articles to attach a certified copy of the plaintiff’s petition only to the copy of the notice which was actually served on the de­fendant. The committee has searched the cases bearing on Articles 2037 and 2038 and has failed to find any case in which the question was raised as to whether the return of the notice to serve non-residents made by the officer and filed in court should also be accompanied by a certified copy of the plaintiff's petition.

IT IS, THEREFORE, the opinion of the committee that the copy pf the plaintiff's petition is not a part of the citation, or notice to serve non-residents, and it is not, therefore, necessary that a copy of such petition be attached to the citation upon which the sheriff makes his return and files in the court.

8 Tex. B.J. 51 (1945).