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Texas Statutes (Last Updated: January 4, 2014) |
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PROBATE CODE |
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Chapter XIII. GUARDIANSHIP |
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Part 2. GUARDIANSHIP PROCEEDINGS AND MATTERS |
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Subpart D. SERVICE AND NOTICE |
Sec. 632. ISSUANCE, CONTENTS, SERVICE, AND RETURN OF CITATION, NOTICES, AND WRITS IN GUARDIANSHIP PROCEEDINGS
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(a) A person does not need to be cited or otherwise given notice in a guardianship proceeding except in situations in which this chapter expressly provides for citation or the giving of notice. If this chapter does not expressly provide for citation or the issuance or return of notice in a guardianship proceeding, the court may require that notice be given. If the court requires that notice be given, the court shall prescribe the form and manner of service and return of service.
(b) Unless a court order is required by a provision of this chapter, the county clerk shall issue without a court order necessary citations, writs, and process in guardianship proceedings and all notices not required to be issued by guardians.
(c) A citation and notice issued by the clerk shall be signed and sealed by the clerk and shall be styled "The State of Texas." A notice required to be given by a guardian shall be in writing and signed by the guardian in the guardian's official capacity. A citation or notice shall be dated and directed to the person that is being cited or notified and must state the style and number of the proceeding and the court in which the proceeding is pending and must describe generally the nature of the proceeding or matter to which the citation or notice relates. A precept directed to an officer is not necessary. A citation or notice must direct the person cited or notified to appear by filing a written contest or answer or perform other required acts. A citation or notice must state when and where an appearance or performance by a person cited or notified is required. A citation or notice is not defective because it contains a precept directed to an officer authorized to serve it. A writ or other process other than a citation or notice shall be directed "To any sheriff or constable within the State of Texas" and may not be held defective because it is directed to the sheriff or any constable of a specific county if the writ or other process is properly served within the named county by an officer authorized to serve it.
(d) In all situations in which this chapter requires that notice be given or that a person be cited, and in which a specific method of giving the notice or citing the person, or a specific method of service and return of the citation or notice is not given, or an insufficient or inadequate provision appears with respect to any matter relating to citation or notice, or on request of an interested person, notice or citation shall be issued, served, and returned in the manner the court, by written order, directs in accordance with this chapter and the Texas Rules of Civil Procedure and has the same force and effect as if the manner of service and return had been specified in this chapter.
(e) Except in instances in which this chapter expressly provides for another method of service, a notice or citation required to be served on a guardian or receiver shall be served by the clerk that issues the citation or notice. The clerk shall serve the citation or notice by sending the original citation or notice by registered or certified mail to the attorney of record for the guardian or receiver or to the guardian or receiver, if the guardian or receiver does not have an attorney of record.
(f)(1) In cases in which it is provided that personal service shall be had with respect to a citation or notice, the citation or notice must be served on the attorney of record for the person who is being cited or notified. Notwithstanding the requirement of personal service, service may be made on the attorney by any method specified under this chapter for service on an attorney. If there is no attorney of record in the proceeding for the person who is being cited or notified, or if an attempt to make service on the attorney was unsuccessful, a citation or notice directed to a person within this state must be served in person by the sheriff or constable on the person who is being cited or notified by delivering to the person a true copy of the citation or notice at least 10 days before the return day on the citation or notice, exclusive of the date of service. If the person who is being cited or notified is absent from the state or is a nonresident, the citation or notice may be served by a disinterested person competent to make oath of the fact. The citation or notice served by a disinterested person shall be returnable at least 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 the citation or notice. The return must 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 an officer authorized by the laws of this state to take affidavits, under the hand and official seal of the officer, and returned to the county clerk who issued the citation or notice. If the citation or notice is returned with the notation that the person sought to be served, whether or not within this state, cannot be found, the clerk shall issue a new citation or notice directed to the person sought to be served and service shall be by publication.
(2) When citation or notice is required to be posted, the sheriff or constable shall post the citation or notice at the courthouse door of the county in which the proceeding is pending, or at the place in or near the courthouse where public notices customarily are posted, for at least 10 days before the return day of the citation or notice, exclusive of the date of posting. The clerk shall deliver the original and a copy of the citation or notice to the sheriff or a constable of the proper county, who shall post the copy as prescribed by this section and return the original to the clerk, stating in a written return of the copy the time when and the place where the sheriff or constable posted the copy. The date of posting is the date of service. When posting of notice by a guardian is authorized or required, the method prescribed by this section shall be followed. The notice is to be issued in the name of the guardian, addressed and delivered to, posted and returned by, the proper officer, and filed with the clerk.
(3) 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 proceeding is pending, and the publication shall be not less than 10 days before the return date of the citation or notice, exclusive of the date of publication. The date of publication of the newspaper in which the citation or notice is published appears is the date of service. If there is no newspaper of general circulation published or printed in the county in which citation or notice is to be had, service of the citation or notice shall be by posting.
(4)(A) When a citation or notice is required or permitted to be served by registered or certified mail, other than a notice required to be given by a guardian, the clerk shall issue the citation or notice and shall serve the citation or notice by sending the original citation or notice by registered or certified mail. A guardian shall issue notice required to be given by the guardian by registered or certified mail, and the guardian shall serve the notice by sending the original notice by registered or certified mail. The citation or notice shall be mailed return receipt requested with instructions to deliver to the addressee only. The envelope containing the citation or notice shall be addressed to the attorney of record in the proceeding for the person who is being cited or notified, but if there is no attorney of record, or if the citation or notice is returned undelivered, the envelope containing the citation or notice shall be addressed to the person who is being cited or notified. A copy of the citation or notice and the certificate of the clerk or guardian 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 a citation or notice is required or permitted to be served by ordinary mail, the clerk or the guardian when required by statute or court order, shall serve the citation or notice by mailing the original to the person being cited or notified. A copy of the citation or notice and a certificate of the person serving the citation or notice that shows the fact and time of mailing shall be filed and recorded.
(C) When service is made by mail, the date of mailing is the date of service. Service by mail must be made not less than 20 days before the return day of the citation or notice, exclusive of the date of service.
(D) If a citation or notice served by mail is returned undelivered, a new citation or notice shall be issued, and the new citation or notice shall be served by posting.
(g) A citation or notice issued by the clerk and served by personal service, by mail, by posting, or by publication shall be returned to the court from which the citation or notice was issued on the first Monday after the service is perfected.
(h) In a guardianship proceeding in which citation or notice is required to be served by posting and issued in conformity with the applicable provision of this code, the citation or notice and the service of and return of the citation or notice is sufficient and valid if a sheriff or constable posts a copy of the citation or notice at the place or places prescribed by this chapter on a day that is sufficiently before the return day contained in the citation or notice for the period of time for which the citation or notice is required to be posted to elapse before the return day of the citation or notice. The sufficiency or validity of the citation or notice or the service of or return of the service of the citation or notice is not affected by the fact that the sheriff or constable makes the return on the citation or notice and returns the citation or notice to the court before the period elapses for which the citation or notice is required to be posted, even though the return is made, and the citation or notice is returned to the court, on the same day it is issued.
(i) Proof of service by publication, posting, mailing, or otherwise in all cases requiring notice or citation shall be filed before a 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 person's affidavit. Proof of service by publication shall be made by an affidavit of the publisher or of an employee of the publisher that shows the issue date of the newspaper that carried the notice or citation and that has attached to or embodied in the affidavit a copy of the notice or citation. Proof of service by mail shall be made by the certificate of the clerk, or the affidavit of the guardian or other person that makes the service that states the fact and time of mailing. The return receipt must be attached to the certificate, if a receipt has been returned if service is made by registered or certified mail.
(j) At any time after an application is filed for the purpose of commencing a guardianship proceeding, a person interested in the estate or welfare of a ward or an incapacitated person may file with the clerk a written request that the person be notified of any or all specifically designated motions, applications, or pleadings filed by any person, or by a person specifically designated in the request. The person who makes the request is responsible for the fees and costs associated with the documents specified in the request. The clerk may require a deposit to cover the estimated costs of furnishing the person with the requested notice. The clerk by ordinary mail shall send to the requesting person a copy of any document specified in the request. A proceeding is not invalid if the clerk fails to comply with the request under this subsection.