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Rule 742. Service of Citation (1941)

TEXT

The officer receiving such citation shall execute the same by reading it to the defendant, or by leaving a copy thereof with some person over the age of sixteen years, at his usual place of abode, at least six days before the return day thereof; and on or before the day assigned for trial he shall return such citation, with his action written thereon, to the justice who issued the same.

Source: Art. 3980, with minor textual change.

Oct. 29, 1940, eff. Sept. 1, 1941.

AMENDMENTS

ADVISORY OPINIONS

Question: In forcible entry and detainer, Rule 742 provides that citation shall be served at least six days before the return day thereof. In the computation of time, Rule 4 provides that the day of the act is not to be included, but the last day of the period so computed is to be included. Forcible entry and detainer, being a special proceeding, is the time under Rule 742 governed by Rule 4? For illustration, could a citation in forcible entry and detainer served on the defendant on May 21, 1946, be properly returnable on May 27, 1946?

Answer: It is the opinion of the Subcommittee that Rule 4 is applicable in construing Rule 742, and that a citation in forcible entry and detainer served on the defendant on May 21st, 1946, would be properly returnable on May 27th, 1946.

Rule 4 provides a general rule of construction, and the fact that forcible entry and detainer is a special proceeding does not make Rule 4 inapplicable if it is otherwise pertinent. By its express terms Rule 4 may be invoked "in com­puting any period of time prescribed or allowed by these Rules, by order of court, or by any applicable Statute .... "

It will be noticed that the service of citation provided for in a forcible entry and detainer suit under Rule 742 calls for service upon the de­fendant "at least six days before the return day thereof," and its terminology does not follow the wording of Rule 101 in regard to citation in the District and County Courts which provides that the defendant must answer on the Monday next after the expiration of twenty days from the date of service."

Under the proper construction of Rule 742, in the light of the provisions of Rule 4, service on May 21st would constitute service six days before May 27th, and accordingly the citation would be properly returnable on May 27th.

9 Tex. B.J. 262 (1946).