Untitled Texas Attorney General Opinion

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Honorable Julian X. Welsler County Attorney ;:ashinCtonCounty Brenham, Texas Dear Sir: Opinion No. 0-333S Re: Whether the sheriff executing process as required by Article 3334, V.A.C.S., has to wait until the ten days provided therein have expired before he oan file his return in '. oourt showing exeoutlon thereor. Your question andexplanation thereof as aontained. in your letter of Maroh 25, requesting an opinion of this Uepart- ment, re3Gs as follows: "QUESTIOWt When applioation for probate of a~will is riled, ana the Sherirr is given the oitation which under Art. 33N and Art. 3310a of Vernon's Texas Civil Statutes shall be served by poeting one oopy thereor at the aourthouse door for not less than ten (10) days before the return day thereof, aan the Sherlfr after he has posted one copy thereof at the courthouse door immediately make his return and file same with the County Clerk, or does the sheriff have to wait until the ten days heve expired before he can file his return in oourt showing execution of the writ. n* * * .

"For Illustration an appllaation for the probate of a will is file& In County Court on Thursday, Xarch 20, 1941, and the aitation is handed to the Sheriff of the County and he

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lcmsdlately Roes and post a oopy'thenoi at the oourthousc door on said ZOth day of Earoh, 1941, aald writ beinp returnable for Eonday, March 31, 1841, r;n",OG the mz,e dry of Earoh 20, 1941, hevicp~;osted the copy of oitatfon as rewired by statute he -skieshis return sho<yvinE t&t he reoeivs:?~~116wri,ton the 20th day of &roh, 1941, .nc:.that he executed sami on the 2~0th day of Xsrck, 1943,,bv ymting one copy there- 0 i 51 t t,i: courthouse aoor Por'not less than tea (1X) ?::y:i tmefore:.?creturn day t~kweof; the Sheriff file8 this return on s:.idZOth day of Mcrch, 19:;1,sitb the clerk of the Coun- ty Court." Artiole X%54, Vernon*8 Annotated Civil StaSutea rela- ttn to aerviaa or aitatlon authorized ts ba isauod upon filing an applloatlon r0r probate 0r written will, provldesr "The citation shall be served by poetine one co::-thereof st the courthouse door for not lees than ten (10) days berore the return day thereof."

_Artlale _ 33lOs, Vernon's Annotated Civil Ststutes, in part, provides: mAll altstlons and notloea iamed out of the Gountr Court in probate mattorn ahall be returnab1f.dto the Court from whioh issued on the rlrst Monday atter tha 8enioe Is psrf6otsd, A11 such notloes end aitetiona now required 'to be posted shall be poeted et the Oourt Heuae door ior not lees thzn+t;nF(lO) days bmtora the return day thereof. .

-_ -The first _ _ statute ._ -above quoted. provides - .the . oitation .,_ shall be "served by poster@ ona oopy tneraor at tne oourtnouae door for not less than ten (10) deya berore the return day thare- or. Substantially the ama language Is found in Artl8le 33lQa, that such citations, *now required to be posted" shall be posted for not iess then ten (lC,)d~tysbefore the return Uny thereor. ,Jrtlcie2034, Vernon*e AMotatod Clvll Statutes, pro- vides that the return of the offlaer exeauting the citatPon shell

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be endorsed on or attaohed to the same; and it further pravidea "it shall state when the citation is served and the manner of servioe, conforming to the command of the writ, and be signed by him officislly." In Words and Phrases, Permanent Edition, Vol. 33, P. 120 is found the following with referenoe to advertising or giving not toe: *The verb 'post' Is defined in Webster's Dictionary as follows: 'To attach to a sign- post, or other usual place of afiixing publio notices; to advertise; as to post a notioe.' As used in Revised Civil Statutes art. 3230, providing that the olerk shall 'post* 8t leaat rive ooplea or the order for an eleo- tion, eta., means that notloe shall be given to the eleotors, eta. voss vs. Terrell, 34 S.W. 170, 171, 12 Tex. Civ. App. 439." The Supreme Court in Roberts v. Stockslager, 4 Texas 308-10, said: *The provialons of the statute aa to the mode,of aerviee and the rullneaa of the return are aa plain aa they are Imperative. They oan- not be mistaken, and the oourta should not permit them to be dlaregarUed. They preaorlbbe the mode by whioh the court aoqulres jurledlo- tion over the peraon of the defendant1 and as this is neoeasary to give validity to,Its aota and judgments, the regulations on the aubjeot should be striotly obaerved by the oifioers charged with the duty, and enforoed by~the tribunal before which the mattera in aontro- veray are to be determined." The preaoribed mode of making the aervioe by the orrioer Is that a copy of the citation be "posted." In Martin v. Smith, 23 Tex. Civ. App. 665, 67 S. W. 299, the oourt said: "There is no statute which in the case of probate of wills makes the juris- diction of the court to act depend on the return of the oitation showingsthat the postlng,was had in all partioulars as the stat- ute prescribes.* We are able to find one aaae only whioh atrong- ly supports the view that the provision "for not less than ten

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(10) days b&ore the return day thereore, has no partioular relation to the time in whioh the oifloer may make his return. In Welson v. Stat6, 75 'S.W. 602, the Court of Criminal Appeals said: "By 'posting as required by law' la meant that the notices must be actually posted the requisite number of days before the election Is held. The faat that the notioes may have been subsequently torn or blown down would not affect the validity of the election. n!herethe statute requires the notices to be posted 12 days before the eleotion;ifthe proof conclusively shows that said posting did occur, then the oourt, as indicated in the original opinion, is authorized to tell the jury, as a question of law, that the looal option law ia valid.* Artiole 2026, Revised Civil Statutes, provides that the officer to whom a oitation is delivered shall endorse there- on the day and hour on which he received it, and shall execute -- and return the same without delay. The word "return' here means the peal return of the exeouted process as distinguished from "return" in ArMole 2034, aupra. It strongly appears to us that when the oopy of auoh citation as provided by etatute, ia onoe *poetedn or arrixed at the courthouse door, the preaumptlon exiata that it has not only been seourely fixed but will remain for the full ten (10) daye. The offioer, having fulfilled his duty, is not required to withhold making his return under the provisions of Artialea 2025 ana 2034, supra. The oonolualon of law arlaing from the aotual *posting" and the making of his return as required by these statutes, is not affected by the offloer making his return prior to the expira- tion of the time judioial aotion is authorized.

It is thererore the opinion of this department that a sherifr serving a oitation by vpoating" as required by Artiole 3334 and in auah manner apsolfied In Artiole 3310a, Vernon's Annotated Civil Statutes, is not required to wait the expiration of the ten (10) days mentioned therein before making his return of the prooess to oourt. RJRK:RS Yours very truly APPROVED APRIL 23, 1941 ATTORNEYGERERAL OF TEXAS By S. GROVER SELLERS FIRST ASSISTANT ATTORNEY GENERAL By S. J. R. King, Assistant APPROVED OPINION COMMITTEE BY S. BWB CHAIRMAN