September 17, 1975
The Honorable George N. Rodriquez, Jr. Opinion No. H- 69”4
County Attorney
Room 201, City-County Building Re: Whether a constable or
El Paso, Texas 79901 sheriff may send notices of
eviction on behalf of his private
employer and use his official
letterhead or title.
Dear Mr. Rodriques:
You have asked our opinion as to the scope and application of article
397 Sa, V. T. C. S. , which provides for notice preliminary to forcible detainer
actton. You particularly ark:
1. Can a constable or a Sheriff, while
acting in his or her private capacity as
an agent or employee of a landlord, send
a tenant a notice of eviction form which
is headed “THE COUNTY OF II
or “THE STATE OF TEXAS” or bears on
its face the seal of the State of Texas?
2. Can a constable or Sheriff, while
acting in his or her private capacity as
an agent or employee of a landlord, send
a tenant a notice of eviction, indicating on
said notice of eviction his or her official
title (i. e. , Sheriff or constable)?
You have furnirhed background information which prompted your questions
by explaining that:
The El Paso Sheriff and/or constables and their
deputies are serving eviction notices to tenants in
their private capacities as agents and employees
of landlords, purportedly pursuant to Article 39754
V. A. T. S. In some cases, these notices bear on
faces the seal of the State of Texas. In addition,
the notices often refer to the County of El Paso or
to the State of Texas.
p. 3012
..
The Honorable George N. Rodriguez, Jr., - Page 2 (H-694)
Article 3975a provides:
That except where otherwise contracted
orally or by written lease, upon default in
payment of rent by a tenant, any landlord
leasing to a tenant for a tenancy in excess of
a period of week to week, upon default of
payment of rent, shall give to such tenant a
minimum of three (3) days written notice to
vacate such premises delivered in person or
by mail to the leased premises prior to filing
an action for forcible entry or detainer. Upon
the expiration of at least said three (3) days or
stipulated length of notice, calculated from the
date of delivery of the notice to the premises,
if the tenant has not vacated said premises,
action in forcible detainer or at common law
may be commenced. Notice to vacate under
the circumstances provided herein shall sup-
plant existing periods of notice at common law.
Sheriffr and constables are statutorily required to “execute” all judicial
“process” and “precepts” “directed” to them by legal authority. V. T. C. S.
arts. 6873, 6885. However, it is obvious that the eviction notice contemplated
by article 3975a is not “process” or a “precept” issued by legal authority and
that sheriffs and constables have no duty, authority or power to “execute” such
notice.,
Accordingly, it would appear that where a sheriff or constable purports to
execute the eviction notice asprovided by article 3975a (as he would seemingly
do where the notice is headed “The County of “or “The State
of Texas” and bears the seal of the State of Texas, and as he would almost
certainly do where the notice bears the official title of the sheriff or constable),
such sheriff or constable has committed an act constituting “an unauthorized
exercise of his official power” and/or an act “under color of his office . . . that
exceeds hia official power” in violation of section 39. 01, subsections (a)( 1) and
(a)(2), Penal Code. A possible violation of article 37. 10, Penal Code, is further
indicated since the notice as sent by the sheriff or constable may be a “document”
that,is intended to “be taken as a genuine governmental record. I’
Additionally, the private activities of the sheriff and constable, presumably
for remuneration, which you describe may constitute a criminal violation of
article 17. 08 (a)(2). Business and Commerce Code, forbidding the use of the
“Great Seal of Texas for a commercial purpose” and a deceptive trade practice
as defined by section 17.46 of the Business and Commerce Code, providing for
civil penalties.
p, 3013
- _-
The Honorable George N. Rodriguez, Jr., - Page 3 (H-694)
To reiterate, the use of “The County of , ” “The State of
Texas, ” the seal of the State of Texas, or any representation that a notice of
eviction is the official act of the sheriff or constable as you have described, may
constitute violations of several Texas penal and civil laws.
S~UMMARY
It is improper and illegal for a sheriff
or constable to send eviction notices as
authorized by article 3975a, V. T. C. S. ,
with any notations thereon that would
make the notice appear to be the official
act of a court or of an officer of the State
of Texas.
-Very truly your*,
Attorney General of Texas
Opinion Committee
jad:
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