Hon. I. Predeckl Opinion No. V-733
County Auditor
Galveston County Re: The disposition to be
Galveston, Texas made of the fees of R
c0nstabl.efor serving
the first notice In
eviction ectlons.
Dear Sir:
Reference 1s made to your recent request which
reads, In part, as follows:
"As you know, all County Officials must
file their Annual Reports as required In Artl-
cle 3897, R.C.S., as amended.
"Mr. Henry Felgle, Constable, Prec. #l,
Galveston County, has executed his report.
He did not account for fees that are paid,
but to the best of my knowledge, are not
stipulated in the Statutes, for serving the
first notice in evictions. . .
"Mr. Felgle takes the position that he
does not have to account for the fees that
he receives for the notices served referred
to."
We assume that-,theConstable gave the notice
under Article 3973 and Section 1 of Art. 3975, V. C. S.,
which provide as follows:
"If any person (1) shall make an entry
Into any lands, tenements or other real pro-
perty, exce t in cases where entry is given
by law, or 72) shall make any such entry by
force or (3) shall wllfully and without force
hold over any lands, tenements or other real
property after the termination of the time
for which such lands, tenements or other real
property were let to him, or to the person
under whom he claims, after demand made in
162
Hon. I. Predecki, page 2 (v-733)
writing for the oossesslon thereof by the
person or Dersons entitled to such oosses-
f&on, such person shall be adjudged guilty
of forcible entry and detalner, or of for-
cible detainer, as the case may be. Any
justice of the peace of the precinct where
the property Is situated shall have juris-
;i;,":o+of any case arising under this
. (Emphasis added)
Art. 3975.
"A person shal.1be adjudged guilty of
forcible detalner also In the following
cases:
"1. Where a tenant at will or by suf-
ferance refuses, after demand made In wrlt-
lng as aforesaid, to glve possession to the
landlzrd after the termination of his will.
. . .,
In passing upon a similar question In the case
of Moore v. Sheppard, 144 Tex. 537, 192 S.w.(2d) 559, the
Supreme Court stated:
"The Clerks of the Courts of Civil Ap-
peals are not entitled to receive extra com-
pensation for services performed within the
scope of their official duties prescribed by
law. The general principle prohibiting pub-
lic officials from charging fees for the per-
formance of their official duties does not
prohlblt them from charging for their ser-
vices for acts that they @e under no obllga-
tlon, under the law, to perform . . .
"There being no statutory duty requlr-
lng petitioners to furnish uncertified, un-
official.copies of opinions of the Courts of
Civil Appeals, no statute fixing any fee for
such services, and no valid statute requlr-
ing that money received therefor be deposlt-
ed In the State Treasury, there 1s no debt
owing by petitioners to the State. Since
petitioners are not required to account to
the State Treasurer, under the existing
statutes, for such,receipts, they cannot be
required to execute an affidavit that such
Hon. I..Predeckl, page 3 (V-733)
funds have been deposited in the State Trea-
sury as a condition for $he delivery of their
monthly salary warrants.
It will be noted that the aa'ovestatutory pro-
visions do not make It an official function of the Con-
stable to serve the notice required by Art. 3973, V. C.
S nor are we able to find any such statlifte.As stated
ln'the case of Moore v. Sheppard, supra, the general
principle prohlbfting public officials from charging
fees for the performance of their official duties, does
not prohibit them from charging for their services for
acts that ttey are under no obligation, under the law,
to perform. Therefore, in the absence of statutory pro-
hibition, the Constable of your county may retain the
money which he may receive for serving written notice in
eviction cases, since there is no authority to the ef-
fect that such money is a fee of office for which he iS
accountable.
SUMMARY
A Constable who receives money for
serving written ,notice in evic,tioncases
is not required to nrrnnnt for same. Moore
v. Sheppard, 144 Tex. 537, 192 S.w.(2d) 559.
Yours very truly,
ATTORNEY GENERAL OF TEXAS
BA:bh:mw
By/4&cc~./*-~
J
Bruce Allen
Assistant
APPROVED:
ASSISTANT
ORNEYGWWAL