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Rule 533. Requisites of Process

TEXT

Every writ or process from the justice courts shall be issued by the justice, shall be in writing and signed by him officially. The style thereof shall be "The State of Texas." It shall, except where otherwise specially provided by law or these rules be directed to the person or party upon whom it is to be served, be made returnable to some regular term of court, and have noted thereon the date of its issuance.

Source: Art. 2400.

Change: The process is to be directed to the party rather than to an officer of a named county.

Oct. 29, 1940, eff. Sept. 1, 1941. Repealed by order of April 15, 2013, eff. Aug. 31, 2013.

ADVISORY OPINIONS

(No. 67) Question: What direction respecting the time of return should be contained in a writ of attachment issued out of a justice court? See Rules 533, 594, and 606.

Answer: It is the opinion of the sub­committee that the matter is regulated by the jurisdictional statutes, Articles 275 et seq., and Rule 606. The writ of attachment should therefore direct the officer executing the same to return it to the court from which if issued "at or before 10 o'clock a. m. of the Monday next after the expiration of fifteen days from the date of the issuance of the writ."

The specific rules governing the practice in the justice courts (Rules 523 to 591, both inclusive) do not provide for the time of the return of a writ of attachment but such time is specifically provided for by Rule 606, the source of which is old Article 298 with the return date changed to read from "the first day of the next term there­of" to "at or before 10 o'clock a. m. of the Monday next after the expiration of fifteen days from the date of issuance of the writ." By force of Articles 275, et seq. and Rule 606 the rules relating to ancillary proceedings (Part VI, Rules 529, et seq.) are applicable.

5 Tex. B.J. 427 (1942) reprinted in 8 Tex. B.J. 27 (1945).

Question: In the Justice Court under Rules 533, 534, 535 and 537, if a personal citation is served on appearance day, or on the day subsequent, of the term to which it is returnable, would it be good service for a subsequent term?

Answer: No. The above rules were taken from Articles 2400, 2401, 2404 and 2009 of the Revised Statutes. The only change with reference to personal citation was that the citations should be directed to the party rather than to an officer of a named county.

The above statutes relating to the Justice Court procedure did not require ten days service of citation, but Article 2381 provided that the rules governing District Courts should apply in the Justice Court in the issuance and return of citation.

The Supreme Court in adapting the rules took a part of Article 2009, applying to District and County Courts and in Rule 535 applied it to Justice Courts, requiring ten days service citations.

Article 2036 provided that citations shall be served before the return day thereof. The defendant shall not be required to plead at the return term of the Court unless the citation be served at least ten days before the first day of such terms, exclusive of the days of service and return, but when a citation is served before the return day thereof and less than ten days before the first day of such term, exclusive of service and returns, such service shall compel the defendant to plead at the next succeeding term.

Article 2036 was repealed by the rules and was not carried into the new rules.

In view of the above it is the opinion of the committee that to be effective at all, the citation must be served at least ten days before the appearance day stated therein, and unless this is done the defendant is not required to answer at any time before a new citation is served on him.

10 Tex. B.J. 109 (1947).