,
September 16, 1975
The Honorable Tom Hanna Opinion No. H- 692
Criminal District Attorney
Jefferson County Re: Question relating
P. 0. Box 2553 to service of
Beaumont, Texas 77704 civil process.
Dear Mr. Hanna:
You have asked our opinion concerning the following questions:
(1) What criminal charge applies to one interfering
with or resisting the execution of civil process?
(2) What charge applies to one who threatens or
displays a deadly weapon during the service of
civil process?
(3) Under the law, what authority does an officer
have in the execution of civil process aboard a
marine vessel not under way?
With regard to the first question, articles 336 and 340. Texas Penal
Code of 1925, defined as crimes the interfering with and,the resisting of
the execution of civil process. The new Penal Code, enacted in 1973 and
effective on January 1, 1974, expressly repealed articles 336 and 340
and no comparable provision in the new Code replaced the repealed articles. Acts
1973; 63rd Leg.,,. ch. 399. sec. 3(a’), p. 99l.The immediate past Legislature,
the 64th, did not enact into law a statute that would provide criminal sanc-
tion for opposition to the service of,civil process. Accordingly, Texas has
no law which specifically prohibits conduct that interferes with the execu-
tion of process in a civil case. But see section 36.05, Penal Code,
relating to subpoenas.
p. 3005
I .
The Honorable Tom Hanna, page 2 (H-692)
However, your second question - what criminal charge is applicable
where a deadly weapon is displayed during the service of civil process
--suggests that there are other penal statutes which may be applicable to
interference or resistance occurring in the service of process in a civil
case. A firearm is “per se” a “deadly weapon” while other instruments
of attack may be “deadly weapons” if death or serious bodily injury could
result from the manner of their use. Ortiz v, State, 490 S. W. 2d 594
(Tex. Crim.App. 1973): Trimble v. State, 190 S. W. 2d 123 (Tex. Crim.
App. 1945); Butler v. State, 100 S. W. 2d 707 (Tex. Crim. App. 1937).
Section 46.02, Penal Code, 1974, prohibits the carrying of a handgun,
although this prohibition is not applicable to one who possesses a pistol
“on his own premises or premises under his control,” section 46.03(2).
However, should a handgun be displayed during process serving where
the premises involved were not controlled by the displayer, the crime
defined by section 46.02 would be committed;
Even where the person displaying the deadly weapon during ‘service is
on his own premises, other provisions of the Penal Code may become
operable depending upon the facts. Section 22.01 defines an assault, in
part, as “intentionally or knowingly . . . [threatening] another with
imminent bodily injury. ” Section 22. 02 makes an assault “aggravated”
where “a deadly weapon” (any “deadly weapon, ” not just a pistol) is used.
Section 22.05 creates an offense where one “recklessly engages in con-
duct that places another in imminent danger ‘of serious bodily injury”
and “recklessness and danger are presumed if the actor knowingly . . .
[points] a firearm at or in the direction of another. . . ” And an
offense is committed where one “threatens to commit any offense
involving violence to any person . . . with intent to . . . place any
person in fear of imminent serious bodily injury . . . ” Section 22.07.
It would therefore seem probable that one or more of the foregoing
offenses would be committed by a person who displays a deadly weapon
to an officer serving civil process.
To answer your third question, relating to the service of civil process
aboard a maritime vessel, is dependent upon the type of ship involved.
Where the vessel is a naval vessel of the United States or foreign
government, it would seem clear that an agent of the State of Texas lacks
the power to board such ships for the purpose of executing civil process.
p. 3006
The Honorable Tom Hanna, page 3 (H-692)
Attorney General Opinion M-285 and the authorities cited therein.
However, it would seem equally clear that an agent of the State of
Texas has the power to board merchant ships of the United States
and any foreign power for the purpose of serving process in civil
(and criminal) cases. Attorney General Opinion M-285..
SUMMARY
There is no spe’cific criminal offense that
covers the interfering with or resistance of the
service of civil process. However, there are a
number of assaultive offenses that probablycover the
display of a deadly weapon during the service of
process. Civil process may be served aboard
domestic and foreign merchant vessels but not
aboard naval vessels of the United States nor
foreign powers.
Very truly yours,
/I
JOHN L. HILL
Attorney General of Texas
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 3007