Texas Probate Code - Section 33. Issuance, Contents, Service, And Return Of Citation, Notices, And Writs In Probate Matters
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Texas Lawyer > Probate Code > Texas Probate Code - Section 33. Issuance, Contents, Service, And Return Of Citation, Notices, And Writs In Probate Matters
§ 33. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF
CITATION, NOTICES, AND WRITS IN PROBATE MATTERS. (a) When Citation
or Notice Necessary. No person need be cited or otherwise given
notice except in situations in which this Code expressly provides
for citation or the giving of notice; provided, however, that even
though this Code does not expressly provide for citation, or the
issuance or return of notice in any probate matter, the court may,
in its discretion, require that notice be given, and prescribe the
form and manner of service and return thereof.
(b) Issuance by the Clerk or by Personal Representative. The
county clerk shall issue necessary citations, writs, and process in
probate matters, and all notices not required to be issued by
personal representatives, without any order from the court, unless
such order is required by a provision of this Code.
(c) Contents of Citation, Writ, and Notice. Citation and
notices issued by the clerk shall be signed and sealed by him, and
shall be styled "The State of Texas." Notices required to be given
by a personal representative shall be in writing and shall be signed
by the representative in his official capacity. All citations and
notices shall be directed to the person or persons to be cited or
notified, shall be dated, and shall state the style and number of
the proceeding, the court in which it is pending, and shall describe
generally the nature of the proceeding or matter to which the
citation or notice relates. No precept directed to an officer is
necessary. A citation or notice shall direct the person or persons
cited or notified to appear by filing a written contest or answer,
or to perform other acts required of him or them and shall state
when and where such appearance or performance is required. No
citation or notice shall be held to be defective because it contains
a precept directed to an officer authorized to serve it. All writs
and other process except citations and notices shall be directed
"To any sheriff or constable within the State of Texas," but shall
not be held defective because directed to the sheriff or any
constable of a specific county if properly served within the named
county by such officer.
(d) Where No Specific Form of Notice, Service, or Return is
Prescribed, or When Provisions Are Insufficient or Inadequate. In
all situations in which this Code requires that notice be given, or
that a person be cited, and in which a specific method of giving
such notice or of citing such person, or a specific method of
service and return of such citation or notice is not given, or an
insufficient or inadequate provision appears with respect to any of
such matters, or when any interested person so requests, such
notice or citation shall be issued, served, and returned in such
manner as the court, by written order, shall direct in accordance
with this Code and the Texas Rules of Civil Procedure, and shall
have the same force and effect as if the manner of service and
return had been specified in this Code.
(e) Service of Citation or Notice Upon Personal
Representatives. Except in instances in which this Code expressly
provides another method of service, any notice or citation required
to be served upon any personal representative or receiver shall be
served by the clerk issuing such citation or notice. The clerk
shall serve the same by sending the original thereof by registered
or certified mail to the attorney of record for the personal
representative or receiver, but if there is no attorney of record,
to the personal representative or receiver.
(f) Methods of Serving Citations and Notices.
(1) Personal Service. Where it is provided that personal
service shall be had with respect to a citation or notice, any such
citation or notice must be served upon the attorney of record for
the person to be cited. Notwithstanding the requirement of
personal service, service may be made upon such attorney by any of
the methods hereinafter specified for service upon an attorney. If
there is no attorney of record in the proceeding for such person, or
if an attempt to make service upon the attorney was unsuccessful, a
citation or notice directed to a person within this State must be
served by the sheriff or constable upon the person to be cited or
notified, in person, by delivering to him a true copy of such
citation or notice at least ten (10) days before the return day
thereof, exclusive of the date of service. Where the person to be
cited or notified is absent from the State, or is a nonresident,
such citation or notice may be served by any disinterested person
competent to make oath of the fact. Said citation or notice shall
be returnable at least ten (10) days after the date of service,
exclusive of the date of service. The return of the person serving
the citation or notice shall be endorsed on or attached to same; it
shall show the time and place of service, certify that a true copy
of the citation or notice was delivered to the person directed to be
served, be subscribed and sworn to before some officer authorized
by the laws of this State to take affidavits, under the hand and
official seal of such officer, and returned to the county clerk who
issued same. If in either case such citation or notice is returned
with the notation that the person sought to be served, whether
within or without this State, cannot be found, the clerk shall issue
a new citation or notice directed to the person or persons sought to
be served and service shall be by publication.
(2) Posting. When citation or notice is required to be
posted, it shall be posted by the sheriff or constable at the
courthouse door of the county in which the proceedings are pending,
or at the place in or near the courthouse where public notices
customarily are posted, for not less than ten (10) days before the
return day thereof, exclusive of the date of posting. The clerk
shall deliver the original and a copy of such citation or notice to
the sheriff or any constable of the proper county, who shall post
said copy as herein prescribed and return the original to the clerk,
stating in a written return thereon the time when and the place
where he posted such copy. The date of posting shall be the date of
service. When posting of notice by a personal representative is
authorized or required, the method herein prescribed shall be
followed, such notices to be issued in the name of the
representative, addressed and delivered to, posted and returned by,
the proper officer, and filed with the clerk.
(3) Publication. When a person is to be cited or notified by
publication, the citation or notice shall be published once in a
newspaper of general circulation in the county in which the
proceedings are pending, and said publication shall be not less
than ten (10) days before the return day thereof, exclusive of the
date of publication. The date of publication which said newspaper
bears shall be the date of service. If no newspaper is published,
printed, or of general circulation, in the county where citation or
notice is to be had, service of such citation or notice shall be by
posting.
(4) Mailing.
(A) When any citation or notice is required or permitted to
be served by registered or certified mail, other than notices
required to be given by personal representatives, the clerk shall
issue such citation or notice and shall serve the same by sending
the original thereof by registered or certified mail. Any notice
required to be given by a personal representative by registered or
certified mail shall be issued by him, and he shall serve the same
by sending the original thereof by registered or certified mail. In
either case the citation or notice shall be mailed with
instructions to deliver to the addressee only, and with return
receipt requested. The envelope containing such citation or notice
shall be addressed to the attorney of record in the proceeding for
the person to be cited or notified, but if there is none, or if
returned undelivered, then to the person to be cited or notified. A
copy of such citation or notice, together with the certificate of
the clerk, or of the personal representative, as the case may be,
showing the fact and date of mailing, shall be filed and recorded.
If a receipt is returned, it shall be attached to the certificate.
(B) When any citation or notice is required or permitted to
be served by ordinary mail, the clerk, or the personal
representative when required by statute or by order of the court,
shall serve the same by mailing the original to the person to be
cited or notified. A copy of such citation or notice, together with
a certificate of the person serving the same showing the fact and
time of mailing, shall be filed and recorded.
(C) When service is made by mail, the date of mailing shall
be the date of service. Service by mail shall be made not less than
twenty (20) days before the return day thereof, exclusive of the
date of service.
(D) If a citation or notice served by mailing is returned
undelivered, a new citation or notice shall be issued, and such
citation or notice shall be served by posting.
(g) Return of Citation or Notice. All citations and notices
issued by the clerk and served by personal service, by mail, by
posting, or by publication, shall be returnable to the court from
which issued on the first Monday after the service is perfected.
(h) Sufficiency of Return in Cases of Posting. In any
probate matter where citation or notice is required to be served by
posting, and such citation or notice is issued in conformity with
the applicable provision of this Code, the citation or notice and
the service and return thereof shall be sufficient and valid if any
sheriff or constable posts a copy or copies of such citation or
notice at the place or places prescribed by this Code on a day which
is sufficiently prior to the return day named in such citation or
notice for the period of time for which such citation or notice is
required to be posted to elapse before the return day of such
citation or notice, and the fact that such sheriff or constable
makes his return on such citation or notice and returns same into
court before the period of time elapses for which such citation or
notice is required to be posted, shall not affect the sufficiency or
validity of such citation or notice or the service or return
thereof, even though such return is made, and such citation or
notice is returned into court, on the same day it is issued.
(i) Proof of Service. Proof of service in all cases
requiring notice or citation, whether by publication, posting,
mailing, or otherwise, shall be filed before the hearing. Proof of
service made by a sheriff or constable shall be made by the return
of service. Service made by a private person shall be proved by the
affidavit of the person. Proof of service by publication shall be
made by the affidavit of the publisher or that of an employee of the
publisher, which affidavit shall show the date the issue of the
newspaper bore, and have attached to or embodied in it a copy of the
published notice or citation. In the case of service by mail, proof
shall be made by the certificate of the clerk, or the affidavit of
the personal representative or other person making such service,
stating the fact and time of mailing. In the case of service by
registered or certified mail, the return receipt shall be attached
to the certificate, if a receipt has been returned.
(j) Request for Notice. At any time after an application is
filed for the purpose of commencing any proceeding in probate,
including, but not limited to, a proceeding for the probate of a
will, grant of letters testamentary or of administration and
determination of heirship, any person interested in the estate may
file with the clerk a request in writing that he be notified of any
and all, or of any specifically designated, motions, applications,
or pleadings filed by any person, or by any particular persons
specifically designated in the request. The fees and costs for such
notices shall be borne by the person requesting them, and the clerk
may require a deposit to cover the estimated costs of furnishing
such person with the notice or notices requested. The clerk shall
thereafter send to such person by ordinary mail copies of any of the
documents specified in the request. Failure of the clerk to comply
with the request shall not invalidate any proceeding.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1957, 55th Leg., p. 53, ch. 31, § 1, eff. Aug. 22, 1957;
Acts 1971, 62nd Leg., p. 967, ch. 173, § 1, eff. Jan. 1, 1972;
Acts 1993, 73rd Leg., ch. 957, § 18, eff. Sept. 1, 1993.
Section: 25 26 27 28 29 31 32 33 34 34A 35 36 36B 36C 36D
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Last modified: August 10, 2007
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