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Rule 110. Effect of Rules on Other Statutes (1947)

TEXT

Where by statute or these rules citation by publication is authorized and the statute or rules do not specify the requisites of such citation or the method of service thereof, or where they direct that such citation be issued or served as in other civil actions, the provisions of these rules shall govern. Where, however, the statute authorizing citation by publication provides expressly for requisites of such citation or service thereof, or both, differing from the provisions of Rules 114, 115, and 116, these rules shall not govern, but the special statutory procedure shall continue in force; provided, however, that Rule 117a shall control with respect to citation in tax suits.

Amended by order of Aug. 18, 1947, eff. Dec. 31, 1947: The wording from "provided, however," through "tax suits" has been added.

ADVISORY OPINIONS

(No. 38) Question: In tax suits is citation by publication controlled by Rules of Civil Procedure 114-116 or by the Statutes?

Answer: Article 7345b, Section 3 (d) specifically states the requisites of a cita­tion which is to be made by publication in tax suits, and this article of the stat­ute also specifically states the manner in which such a citation shall be served by publication and states that the defendant shall be cited to appear on the first day of the next term of court. By virtue of the last sentence of Rule 2, and also by virtue of Rule 110, this article of the statute is continued in effect; and inas­much as this statute expressly provides for the requisites of such a citation and service differing from the provisions of the Rules it follows that under Rule 110 this statutory procedure for citation by publication in tax suits supersedes the general Rules on the subject of citation by publication. Therefore citations by publication in such cases should be re­turnable to the next term of court and should otherwise conform to the provi­sions of Article 7345b, Section 3(d).

However, we call attention to Section 13 of Article 7345b which states that:

"The provisions of this Act shall be cu­mulative of and in addition to all other rights and remedies to which any taxing unit may be entitled, but as to any par­ticular proceeding brought under this Act, if any part or portion of this Act be in conflict with any part or portion of any law of the State, the terms and provi­sions of this Act shall govern as to such proceeding. "

It might be held under Subsection 13 that the method of citation by publica­tion provided by Section 3(d) is cumula­tive of the method provided by Rules 114­-116, and that either method is now per­missible. However, this involves a con­struction of the meaning of the statute rather than a construction of the Rules, and it is not within the province of this Subcommittee to pass on such a matter.

5 Tex. B.J. 171 (1942) reprinted in 8 Tex. B.J. 17 (1945).