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Rule 535. Answer Filed

TEXT

Where citation has been personally served at least ten days before appearance day, exclusive of the day of service and of return, the answer of the defendant shall be filed at or before ten o'clock a.m. on such day. Where citation has been served by publication, and the first publication has been made at least twenty-eight days before appearance day, the answer of the defendant shall be filed at or before ten o'clock a. m. on the first day of the first term which shall convene after the expiration of forty-two days from the date of issuance of such citation.

Source: Art. 2009 and Art. 2404.

Change: The rewording harmonizes with Rule 114 dealing with citation by publication, but retains without change the present rule where citation has been personally served.

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 Repealed by order of April 15, 2013, eff.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

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issuing out of the justice court, it is our opinion that such writs are expressly authorized by Articles 275, 281 (not repealed) and282 (the unrepealed part).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: 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).