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The Attorney General of Texas
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July 29, 1983
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JIM MATTOX
Attorney General
I
Honorable Mike Driscoll Opinion No. JM-51
Supreme Court Building
P. 0. Box 12546
Harris County Attorney
Austin, TX. 76711. 2546 1001 Preston, Suite 634 Re: Whether a constable may
512/475.2501 Houston, Texas 77002 charge the Industrial Accident
Telex 9101674-1367 Board fees for serving sub-
Telecopier 51214750266 poenas issued in connection
with administrative hearings
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 Dear Mr. Driscoll:
2141742-6944
You have requested our opinion as to whether a constable may
4624 Alberta Ave., Suite 160
"charge the Industrial Accident Board fees for serving subpoenas
El Paso. TX. 79905.2793 issued by the board in connection with its administrative hearings."
9151533.3464
The board or any member is authorized to subpoena witnesses,
article 8307, section 4, V.T.C.S., and constables are empowered to
.20 Dallas Ave., Suite 202
Houston, TX. 77002-6966
"execute and return. . . all process, warrants and precepts" directed
7131650.0666 to them "by any lawful officer," article 6885, V.T.C.S.
In Attorney General Opinion MN-209 (1980). this office held that
606 Broadway. Suite 312 sheriffs and constables are not entitled to receive fees from the
Lubbock, TX. 79401.3479
Industrial Accident Board for serving subpoenas issued by the board.
606/747-5236
That opinion was based on article 3933a. V.T.C.S., which established a
fee schedule for sheriffs and constables and provided, in pertinent
4309 N. Tenth. Suite B part:
McAllen, TX. 76501-1665
512l662.4547
For each person, corporation or legal entity on
whom service of citation, subpoena, summons, or
200 Main Plaza. Suite 400 process not otherwise provided for, is performed
San Antonio, TX. 76205-2797 or attempted and return made, including mileage,
5121225-4191 if any, a fee of:
An Equal OpportunityI (a) Small Claims Courts $ 5.00
Affirmative Action Employer (b) Justice Courts 8.00
(c) All other Courts 10.00
The opinion reasoned that, since it had been consistently held that an
administrative agency is not a "court," and since statutes are
strictly construed against allowing a fee by implication, a sheriff or
constable was not entitled to a fee for serving subpoenas issued by
the board.
p. 216
Honorable Mike Driscoll - Page 2 (JM-51)
Article 3933a was repealed in 1981. Acts 1981, 67th Leg., ch.
379, at 1001, §2(b). Article 3926a, V.T.C.S., now provides:
(a) The commissioners court of each county may
,set reasonable fees to be charged by the offices
of sheriffs and constables.
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(b) A commissioners court may not set fees
higher than is necessary to pay the expenses of
providing the services.
In view of the repeal of article 3933a and the enactment of article
3926a to allow a commissioners court to set "reasonable fees. . . for
services by the offices of sheriffs and constables," we must conclude
that a Harris County constable is now entitled to charge the
Industrial Accident Board fees for serving subpoenas issued by the
board, provided the commissioners court of Harris County so
authorizes. Attorney General Opinion MN-209 is overruled to the
extent of conflict.
SUMMARY
Pursuant to article 3926a, V.T.C.S.. and the
repeal of article 3933a. V.T.C.S., a Harris County
constable is entitled to charge the Industrial
Accident Board fees for serving subpoenas issued
by the board, provided the commissioners court of
Harris County so authorizes.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
p. 217