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Rule 117a. Citation in Suits for Delinquent Ad Valorem Taxes (1950)

TEXT

In all suits for collection of delinquent ad valorem taxes, the rules of civil procedure governing is­suance and service of citation shall control the issuance and service of citation therein, except as herein otherwise specially provided.

1. PERSONAL SERVICE: 0WNER AND RESIDENCE KNOWN, WITHIN STATE:

Where any defendant in a tax suit is a resident of the State of Texas and is not subject to citation by publication under subdivision 3 below, the process shall conform substantially to the form hereinafter set out for personal service and shall contain the essential elements and be served and returned and otherwise regulated by the provisions of Rules 99 to 107, inclu­sive.

2. PERSONAL SERVICE: OWNER AND RESIDENCE KNOWN, OUT OF STATE:

Where any such defendant is absent from the State or is a nonresident of the State and is not subject to citation by publication under subdivision 3 below, the process shall conform substantially to the form hereinafter set out for personal serv­ice and shall contain the essential elements and be served and returned and otherwise regulated by the provisions of Rule 108.

3. SERVICE BY PUBLICATION: NON­RESIDENT, ABSENT FROM STATE, TRANSIENT, NAME UNKNOWN, RESIDENCE UNKNOWN, OWNER UNKNOWN, HEIRS UNKNOWN, CORPORATE OFFICERS, TRUSTEES, RECEIVERS OR STOCKHOLDERS UNKNOW N, ANY OTHER UNKNOWN PERSONS OWNING OR CLAIMING OR HAVING AN INTEREST:

Where any defendant in a tax suit is a nonresident of the State, or is absent from the State, or is a transient person, or the name or the residence of any owner of any interest in any property upon which a tax lien is sought to be foreclosed, is unknown to the attorney requesting the issuance of process or filing the suit for the taxing unit, and such attorney shall make affidavit that such defendant is a nonresident of the State, or is absent from the State, or is a transient person, or that the name or residence of such owner is unknown and cannot be ascertained after diligent inquiry, each such person in every such class above mentioned, together with any and all other persons, including adverse claimants, owning or claiming or having any legal or equitable interest in or lien upon such property, may be cited by publication. All unknown owners of any interest in any property upon which any taxing unit seeks to foreclose a lien for taxes, including stockholders of corporations -defunct or otherwise - their successors, heirs, and assigns, may be joined in such suit under the designation of "unknown owners" and citation be had upon them as such; provided, however, that record owners of such property or of any apparent interest therein, including, without limitation, record lien holders, shall not be included in the designation of "unknown owners" ; and provided further that where any record owner has rendered the property involved within five years before the tax suit is filed, citation on such record owner may not be had by publication or posting unless citation for personal service has been issued as to such record owner, with a notation thereon setting forth the same address as is contained on the rendition sheet made within such five years, and the sheriff or other person to whom citation has been delivered makes his return thereon that he is unable to locate the defendant. Where any attorney filing a tax suit for a taxing unit, or requesting the issuance of process in. such suit, shall make affidavit that a corporation is the record owner of any interest in .any prop­erty upon which a tax lien is sought to be foreclosed, and that he does not know, and after diligent inquiry has been unable to ascertain, the location of the place of business, if any, of such corporation, or the name or place of residence of any offi­cer of such corporation upon whom per­sonal service may be had, such corporation may be cited by publication as herein provided. All defendants of the classes enu­merated above may be joined in the same citation by publication.

An affidavit which complies with the foregoing requirements therefor shall be sufficient basis for the citation above mentioned in connection with it but shall be held to be made upon the criminal responsibility of affiant.

Such citation by publication shall be directed to the defendants by names or by designation as hereinabove provided, and shall be issued and signed by the clerk of the court in which such tax suit is pending. It shall be sufficient if it states the file number and style of the case, the date of the filing of the petition, the names of all parties by name or by designation as hereinabove provided, and the court in which the suit is pending; shall command such parties to appear and defend such suit at or before 10 o'clock a.m. of the first Monday after the expiration of forty-two days from the date of the issuance thereof, specifying such date when such parties are required to answer; shall state the place of holding the court, the nature of the suit, and the date of the issuance of the citation; and shall be signed and sealed by the clerk.

The citation shall be published in the English language one time a week far two weeks in Some newspaper published in the county in which the property is located, which newspaper must have been in general circulation for at least one year immediately prior to the first publication and shall in every respect answer the requirements of the law applicable to newspapers which are employed for such a. purpose, the first publication to be not less than twenty-eight days prior to the return day fixed in the citation; and the affidavit of the editor or publisher of the newspaper giving the date of publication, together with a printed copy of t}le citation as published, shall constitute sufficient proof of due publication when returned and filed in court. If there is no newspaper published in the county, then the publication may be made in a newspaper in an adjoining county, which newspaper shall in every respect answer the requirements of the law applicable to newspapers which are employed for such a purpose. A maximum fee of two cents per word for the first insertion and one cent per word for the second insertion may be taxed for publishing the citation, but in no event shall the fee exceed the published word or line rate of that newspaper for like classes of advertising. If the publication of the citation cannot be had for this fee, chargeable as Costs and payable upon sale of the property; as provided by law, and this fact is supported by the affidavit of the attorney for the plaintiff or the attorney requesting the issuance of the process, then service of the citation may be made by pasting a copy at the courthouse door of the county in which the suit is pending, the citation to be posted at least twenty­eight days prior to the return day fixed in the citation. Proof of the Posting of the citation shall be made by affidavit of the attorney for the plaintiff, or of the person pasting it. When citation is served as here provided it shall be sufficient, and no other form of citation or notice to the mimed defendants therein shall be necessary."

4. CITATION IN TAX SUITS: GENERAL PROVISIONS.

Any process authorized by this rule may issue jointly in behalf of all taxing units who are plaintiffs or intervenors in any tax suit. The statement of the nature of the suit, to be set out in the citation, shall be sufficient if it contains a brief general description of the property upon which the taxes are due and the amount of such taxes, exclusive of interest, penalties, and costs, and shall state, in substance, that in such suit the plaintiff and all other taxing units who may set up their claims therein seek recovery of the delinquent ad valorem taxes due on said property, and the establishment and foreclosure of liens, if any, securing the payment of same, as provided by law; that in addition to the taxes all interest, penalties, and costs allowed by law up to and including the day of judgment are included in the suit; and that all parties to the suit, including plaintiff, defendants, and intervenors, shall take notice that claims for any taxes on said property becoming delinquent subsequent to the filing of the suit and up to the day of judgment, together with all interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered therein without further citation or notice to any parties thereto. Such citation need not be accompanied by a copy of plaintiff's petition and no such copy need be served. Such citation shall also show the names of all taxing units which assess and collect taxes on said property not made parties to such suit, and shall contain, in substance, a recitation that each party to such suit shall take notice of, and plead and answer to, all claims and pleadings then on file or thereafter filed in said cause by all other parties therein, or who may intervene therein and set up their respective tax claims against said property. After citation or notice has been given on behalf of any plaintiff or intervenor taxing unit, the court shall have jurisdiction to hear and determine the tax claims of all taxing units who are parties plaintiff, intervenor or defendant at the time such process is issued and of all taxing units intervening after such process is issued, not only for the taxes, interest, penalties, and costs which may be due on said property at the time the suit is filed, but those becoming delinquent thereon at any time thereafter up to and including the day of judgment, without the necessity of further citation or notice to any party to said suit; and any taxing unit having a tax claim against said property may, by answer or intervention, set up and have determined its tax claim without the necessity of further citation or notice to any parties to such suit.

5. FORM OF CITATION BY PUBLICATION OR POSTING:

The form of citation by publication or posting shall be sufficient if it is in substantially the following form, with proper changes to make the same applicable to personal property, where necessary, and if the suit includes or is for the recovery of taxes assessed on personal property, a general description of such personal property shall be sufficient:

THE STATE OF TEXAS )

COUNTY OF. . . . . . . . . . )

In the name and by the authority of the State of Texas

Notice is hereby given as follows:

To . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

and any and all other persons, including adverse claimants, owning or having or claiming any legal or equitable interest in or lien upon the following described property delinquent to Plaintiff herein, for taxes, to-wit:

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Which said property is delinquent to Plaintiff for taxes in the following amounts:

$……………………., exclusive of interest, penalties, and costs, and there' is included in this suit in addition to the taxes all said interest, penalties, and costs thereon, allowed by law up to and including the day of judgment herein.

You are hereby notified that suit has been brought by. . . . . . . . . . . . . . . . . . . . . . as Plaintiffs, against . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . as Defendants, by petition filed on the . . . . . . day of. . . . . . . . . ., 19. . ., in a certain suit styled. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . for collection of the taxes on said property and that said suit is now pending in the District Court of. . . . . . . . . . . County, Texas,. . . . . . Judicial District, and the file number of said suit is. . . . . . . ., that the names of all taxing units which assess and collect taxes on the property hereinabove described, not made parties to this suit, are . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Plaintiff and all other taxing units who may set up their tax claims herein seek recovery of delinquent ad valorem taxes on the property hereinabove described, and in addition to the taxes all interest, penalties, and costs allowed by law thereon up to and including the day of judgment herein, and the establishment and foreclosure of liens, if any, securing the payment of same, as provided by law.

All parties to this suit, including plaintiff, defendants, and intervenors, shall take notice that claims not only for any taxes which were delinquent on said prop­erty at the time this suit was filed but all taxes becoming delinquent thereon at any time thereafter up to the day of judgment, including all interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered herein without further citation or notice to any parties herein, and all said parties shall take notice of and plead and answer to all claims and pleadings now on file and which may hereafter be filed in said cause by all other parties herein, and all of those tax­ing units above named who may intervene herein and set up their respective tax claims against said property.

You are hereby commanded to appear and defend such suit on the first Monday after the expiration of forty-two (42) days from and after the date of issuance hereof, the same being the. . . . . . day of….. , A.D., 19... (which is the return day of such citation), before the honorable District Court of. . . . . . . . . . . . . County, Texas, to be held at the court­house thereof, then and there to show cause why judgment shall not be rendered for such taxes, penalties, interest, and costs, and condemning said property and ordering foreclosure of the constitutional and statutory tax liens thereon for taxes due the plaintiff and the taxing units parties hereto, and those who may intervene herein, together with all interest, penalties, and costs allowed by law up to and including the day of judgment herein, and all costs of this suit.

Issued and given under my hand and seal of said court in the City of. . . . . . . . . . . . . . . . . . . County, Texas, this. . . . . . . day of. . . . . . . . . . . ., A. D., 19. . .."

Clerk of the District Court. . . . . . . . . .. . . . . . . . . . . . . County, Texas, . . . . . . . . . . . . . . . . . . . Judicial District.

6. FORM OF CITATION BY PERSONAL SERVICE IN OR OUT OF STATE:

The form of citation for personal service shall be sufficient if it is in substantially the following form, with proper changes to make the same applicable to personal property, where necessary, and if the suit includes or is for the recovery of taxes assessed on personal property, a general description of such personal property shall be sufficient:

THE STATE; OF TEXAS

To. . . . . . . . . . . . . . . . . . . . . ., Defendant. . . . . . . . . . . . . .,

GREETING:

YOU ARE HEREBY COMMANDED to appear and answer before the Honorable District Court, . . . . . . . . . Judicial District, . . . . . . . . . . County, Texas, at the Court­house of said county in. . . . . . .., Texas, at or before 10 o'clock a.m. of the Monday next after the expiration of 20 days from the date of service of this citation, then and there to answer the petition of. . . . . . . . . . ., Plaintiff, filed in said Court on the. . . . day of . . . . . . ., A. D., 19. . . ., against. . . . . . . . . . . . . . . . ., Defendant. ., said suit being number. . . . . . . . . . on the docket of said Court, the nature of which demand is a suit to collect delinquent ad valorem taxes on the property hereinafter described.

The amount of taxes due Plaintiff, exclusive of interest, penalties, and costs, is the sum of $. . . . . ., said property being described as follows, to-wit:. . . . . . . . . . . .

The names of all taxing units which ascess and collect taxes on said property, not made parties to this suit, are:…………………………………………………………

Plaintiff and all other taxing units who may set up their tax claims herein seek recovery of delinquent ad valorem taxes on the property hereinabove described, and in addition to the taxes all interest, penalties, and costs allowed by law thereon up to and including the day of judgment herein, and the establishment and foreclosure of liens securing the payment of same, as provided by law.

All parties to this suit, including plaintiff, defendants, and intervenors, shall take notice that claims not only for any taxes which were delinquent on said property at the time this suit was filed but all taxes becoming delinquent thereon at any time thereafter up to the day of judgment, including all interest, penalties, and costs allowed by law thereon, may, upon request therefor, be recovered herein without further citation or notice to any parties herein, and all said parties shall take notice of and plead and answer to all claims and pleadings now on file and which may hereafter be filed in this cause by all other parties hereto, and by all of those taxing units above named, who may intervene herein and set up their respective tax claims against said property.

If this citation is not served within 90 days after the date of its issuance, it shall be returned unserved.

The officer executing this return shall promptly serve the same according to the requirements of law and the mandates hereof and make due return as the law directs.

Issued and given under my hand and seal of said Court at. . . . . . . . . . . ., Texas, this the. . . . . . day of. . . . . . . . . . . ., A. D., 19. . . . .

. . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . .

Clerk of the District Court of……………………………………………….

. . . . . . . . . . . . . . . . . . . . County, Texas.

By . . . . . . . . . . . . . . . . . . . . . . ., Deputy.

Amended by order of July 17, 1950, eff. Dec. 1, 1950: The amendment substitutes the following portion of the rule, reading:

"And provided further that where any record owner has rendered the property involved within five years before the tax suit is filed, citation on such record owner may not be had by publication or posting unless citation for personal service has been issued as to such record owner, with a notation thereon setting forth the same address as is contained on the rendition sheet made with­in such five years, and the' sheriff or other person to whom citation has been delivered makes his return thereon that he is unable to locate the defendant."

for the portion which formerly read as follows:

"and provided further that where the rendition or assessment list in the assessor's office shows the address of any record owner, Citation of such record owner may not be had by publication or posting unless the party applying therefor shall first make affidavit that he has caused citation to issue for personal service on such defendant at the address shown on said rendi­tion or assessment list and has attempted to secure service thereof, but has been unable to do so."

This amendment was written and recommended by the Advisory Committee appointed by the Supreme Court in 1947, to draft a rule providing for the form of citation to be used in delinquent tax suits. The reason for recommending the amendment was that the present rule, in the opinion of the Committee, places an almost impossible burden on attorneys bringing delinquent tax suits of searching old tax records. The amendment limits this required search to five years before the suit is filed. The requirement of an affidavit showing diligent inquiry, con­tained in the first sentence, is retained.