May 17, 1989
Honorable G. Dwayne Pruitt Opinion No. JM-1046
Terry County Attorney
Terry County Courthouse Re: Whether sheriffs or con-
Brownfield, Texas 79316 stables are entitled to fees
for unsuccessful attempts at
service of civil process
(RQ-1660)
Dear Mr. Pruitt:
You ask whether sheriffs and constables are entitled to
charge a fee for unsuccessful attempts at service of pro-
cess. The resolution of your question turns on the author-
ity of the commissioners court to set such a fee under
section 118.131 of the Local Government Code.
In Attorney General Opinion JM-880 (1988) relevant
provisions of section 118.131 and the history of these pro-
visions were succinctly set forth, as follows:
In 1981, the legislature enacted article
3926a, V.T.C.S. (since codified as section
118.131 of the Local Government Code),
reading:
(a) The commissioners court of each
county may set reasonable fees to be
charged for services by the offices of
sheriffs and constables.
(b) A commissioners court may not set
fees higher than is necessary to pay the
expenses of providing the services.
Acts 1981, 67th Leg., ch. 379, § 1, at 1001.
Subsection 2(a) of the bill that enacted
article 3926a contained the following provi-
sion: 'Fees provided for sheriffs and con-
stables in other laws in conflict with this
Act are repealed to the extent they conflict
P. 5426
Honorable G. Dwayne Pruitt - Page 2 (JM-1046)
.
with this Act.' Id. at 0 2. But the bill
also stated, in section 3(b):
Until a commissioners court prescribes
different fees pursuant to Article 3926a,
Revised Civil Statutes of Texas, 1925, the
fees charged by a sheriff or constable are
those provided by the law in effect on
August 31, 1981. Fees charged by a sher-
iff or constable for services performed
before the effective date of this Act are
governed by the law in effect at the time
the services were performed.
Attorney General Opinion JM-880 (1988), at 1-2.
In Attorney General Opinion JM-880 it was concluded
that the commissioners courts may not set fees for the
execution of criminal warrants by a sheriff or constable and
that the general repealer of conflicting statutes found in
the bill that enacted former article 3926a was not
applicable in criminal cases.1
Focusing on the narrower issue of whether the commis-
sioners court may set a fee for unsuccessful attempts to
serve civil process, you call attention to Attorney General
Opinion H-756 (1975) stating that a sheriff is not entitled
to a fee for an unsuccessful attempt to serve process under
former article 3933a, V.T.C.S. Article 3933a was repealed
by article 3926a, effective September 1, 1981. Acts 1981,
67th Leg., ch. 379, 5 2(b), at 1001.
1. The opinion reasoned that an attempt to set fees in
misdemeanor cases was unconstitutional in that "[a] law
allowing different costs to be assessed in different
counties for the same penal offense would have the affect of
allowing the penalty for state-defined crimes to vary from
county to county and would violate both 'due process' and
'equal protection' constitutional rights." It was stated
that while the same reasoning would apply to felony cases,
it was unnecessary to utilize such analysis since the
provisions of the Code of Criminal Procedure governing fees
in felony cases were repealed by the 69th Legislature in
1985. Acts 1985, 69th Leg., ch. 269, at 1300, 1307. It was
concluded that the.application of section 118.131 to civil
cases was unaffected.
P. 5427
Honorable G. Dwayne Pruitt - Page 3 (JM-1046)
In Attorney General Opinion JM-193 (1984) it was
concluded that commissioners courts may set fees for
services performed by sheriffs and constables in accordance
with article 3926a, even though no fee for the service was
authorized prior to September 1, 1981.
In Attorney General Opinion JM-51 (1983) it was noted
that prior to the repeal of article 3933a, sheriffs and con-
stables were not entitled to receive fees from the Indus-
trial Accident Board for serving subpoenas issued by the
board. However, it was concluded that under article 3926a
(now section 118.131) a charge for serving such subpoenas
was appropriate, provided the charge was authorized by the
commissioners court.
We do not believe that Rule 17 of the Texas Rules of
Civil Procedure prohibits a commissioners court from
authorizing a fee for an unsuccessful attempt to serve civil
process by a sheriff or constable. Rule 17 provides:
Except where otherwise expressly provided
by law or these rules, the officer receiving
any process to be executed shall not be
entitled in any case to demand his fee for
executing the same in advance of such
execution, but his fee shall be taxed and
collected as other costs in the case.
The source for Rule 17 was article 3911, V.T.C.S.,
repealed, Acts 1939, 46th Leg., ch.25, g 1, at 201, and
codified as Rule 17. Prior to the repeal of article 3933a
disallowing a fee until service is performed and return
made, Attorney General Opinion H-756 (1975) construed Rule
17 as prohibiting a county or district clerk from collecting
as court costs a fee for service of process prior to the
actual service and return of process. Section 2(a) of the
bill that enacted article 3926a (now section 118.131)
contained the following provision.
Fees provided for sheriffs and constables
in other laws in conflict with the provisions
of this act are repealed to the extent they
are in conflict with this act.
Acts 1981, 67th Leg., ch. 379, 5 2(a), at 1001.
No reason is perceived why a commissioners court may
not set reasonable fees for services performed by sheriffs
and constables in unsuccessful attempts at service of civil
process under the authority granted the commissioners court
p. 5428
.
Honorable G. Dwayne Pruitt - Page 4 (JM-1046)
to set reasonable fees for services by such officers. How-
ever, until a commissioners court sets a fee pursuant to
section 118.131, a sheriff or constable is not entitled to
any fee for an unsuccessful attempt to serve process.
SUMMARY
Commissioners courts may set reasonable
fees for services performed by sheriffs and
constables in unsuccessful attempts to serve
civil process.
Very truly ~02 ,
J hffiJ&
JIM
L
MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
P. 5429