The Attorney General of Texas
July 10, 1980
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pm-w
Honorable H. S. Harris, Jr. Opinion No. NW-2 99
Chairman, Texas Industrial Accident
Board Re: Sheriff’s fees for serving sub-
P. 0. Box 12757, Capitol Station poenas at the request of the
Austin, Texas 767ll Industrial Accident Board.
Dear Mr. Harris:
You ask whether a county sheriff or constable is entitled to a fee from
the Industrial Accident Board for serving subpoenas issued by the Board in
connection with hearings on compensation claims and fraud cases. The
Board has authority to subpoena witnesses pursuant to sections 4, 9a, and 10
of article 8307, V.T.C.S. Moreover, the Administrative Procedure Act gives
the Board the following authority:
(cl On its own motion or on the written request of
any party to a contested case pending before it, on a
showing of good cause, and on deposit of sums that
will reasonably insure payment of the amounts
estimated to accrue under Subsections (1)(l) and (2) of
this section, an sgency shall issue a subpoena
addressed to the sheriff or any constable to require
the attendance of witnesses and the production of
books, records, papers, or other objects as may be
necessary and proper for the purposes of the
proceedings.
V.T.C.S. art. 6252-13a, S14. Article 6873, V.T.C.S., requires each sheriff to
execute all process directed to him by legal authority.
Article 3933a, V.T.C.S., establishes a fee schedule for sheriffs and
constables which provides in pertinent part:
For each person, corporation or legal entity, on
whom service of citation, subpoena, summons, or
process not otherwise provided for, is performed or
attempted and return made, including mileage, if any,
afeeof
P. 672
Honorable H. S. Harris, Jr. - Page Two (Mw-209)
(a) Small Claims Courts $ 5.00
(b) Justice Courts $ 8.00
(cl All other Courts $10.00
The courts of other states have held that an administrative agency is not a court. See
Nelson v. Real Estate Commission, 370 A.2d 608 (Md. App. 1977); School Dist. NO. 167
New London School Disk, 164 S.W. 688 (MO. App. 1914); In re Assessment of Kansas City
Southern Ry. Co., 33 P. 2d 772 (Okla. 1934). Statutes are strictly construed against
allowing a fee by implication. Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946); Attorney
General Ooinions V-1426 (19521: V-957 (1949). We believe the Texas courts would construe
the above *fee schedule narrowly, and would not hold that it establishes fees for service of
subpoenas in administrative hearings. The sheriff or constable is therefore not entitled to
a fee from the Industrial Accident Board for serving subpoenas issued by the Board in
connection with hearings on compensation claims and fraud eases. See also Tex. Const.
Art. XVI, 561; V.T.C.S. art. 3912(e), Sl (state shall not pay fees to county officers in
counties of over 20,000 population).
SUMMARY
Sheriffs and constables are not entitled to receive fees from the
Industrial Accident Board for serving subpoenas issued by the Board
in connection with hearings on compensation claims and fraud
cases.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Jon Bible
Walter Davis
Susan Garrison
Rick Gilpin
Bruce Youngblood
P. 673