Rule 109. Citation by Publication (1984)

TEXT

When a party to a suit, his agent or attorney, shall make oath that the residence of any party defendant is unknown to affiant, and to such party when the affidavit is made by his agent or attorney, or that such defendant is a transient person, and that after due diligence such party and the affiant have been unable to locate the whereabouts of such defendant, or that such defendant is absent from or is a nonresident of the State, and that the party applying for the citation has attempted to obtain personal service of nonresident notice as provided for in Rule 108, but has been unable to do so, the clerk shall issue citation for such defendant for service by publication. In such cases it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant or to obtain service of nonresident notice, as the case may be, before granting any judgment on such service.

ADVISORY OPINIONS

(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issuing out of the justice court, it is our opinion that such writs are expressly authorized by Articles 275, 281 (not repealed) and282 (the unrepealed part).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 Rule 109, citation by publication, is it necessary for the affidavit to set forth the acts which constitute the diligence of the affiant in locating the defendant, or may the affiant merely use the general allegation that after due diligence he has been unable to locate the whereabouts of the defendant?

Answer: Rule 109 was redrafted by an amendment effective February 1, 1946. (8 Tex. B.J. 532 (1945)). The revised rule was designed to correct abuses which had grown up under the old rule, particularly in divorce cases but to a lesser extent in other types of cases, where the attorney would make the affidavit that the residence of the defendant was unknown to him, which no doubt was the fact, but in truth and in fact his client knew the residence of the defendant and where personal service could be had upon him. While the revised rule does not specifically require that the affidavit set forth the acts which constitute the diligence of the affiant in locating the defendant, we think this is desirable and the better practice in view of the mandatory requirement of the rule that "it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant, or to obtain service of non-resident notice, as the case may be, before granting any judgment on such service." However, we believe the affidavit would be good if it alleged diligence only in general terms.

9 Tex. B.J. 262 (1946).