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Rule 537. Appearance Day (1947)

TEXT

If a defendant who has been duly cited is required by the citation to answer on a day which is in term time, such day is appearance day as to him. If he is so required to answer on a day in vacation, the first day of the, next term is appearance day as to him. Where service of citation has been had by publication, the first day of the term of court which convenes after the expiration of 42 days from the date of is­suance of the citation shall be appearance day.

Amended by order of Aug. 18, 1947, eff. Dec. 31, 1947: The former rule has been completely altered as to appearance day, in case of citation other than by publication, and in the latter respect there has been minor textual change.

ADVISORY OPINIONS

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Article 2036 was repealed by the rules and was not carried into the new rules.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