Untitled Texas Attorney General Opinion ( 1987 )

THE ATTOWSE~- GENERAL
OF TEXAS
October19, 1987
Honorable Charles D. Houston Opinion No. 5x-810
District Attorney
One East Main Re: Whether a constable
Bellville, Texas 77418 is authorized to execute
civil process outside
his county and related
questions
Dear Mr. Houston:
You have submitted the following questions concerning
the duties of constables and deputy-constables to serve
civil process:
1. Can 'a constable or deputy constable
serve civil process:
a. Issued in his county and served
in another county?
b. Issued in another county . . .
and served in another county . . .?
2. Does all the money received by a
constable,. paid deputy constable, unpaid
deputy constable or reserve deputy con-
stable, have to be turned in to the county
treasurer of his county, regardless of where
the process originates or is executed?
3. Can a deputy constable act as a
private process server?
We conclude that a constable or deputy constable may serve
civil process in the county in which he is elected or
appointed or in a county contiguous to that county. A
constable or deputy constable must deposit all money
received for serving citation with the county treasurer of
his county regardless of where the citation originates or
is SSNSd. A deputy constable authorized to serve
citation pursuant to Rule 106(b) of the Texas Rules of
Civil Procedure may not act as a private process server.
p. 3833
Honorable Charles D. Houston - Page 2 (JM-810)
The first question is in two parts, both parts con-
cerning the authority of a constable or deputy constable
to serve civil process outside the county in which he
holds office. Specifically, the inquiry is directed to '
the authority conferred upon these officers by the Texas
Rules of Civil Procedure.
Rule 103 of the Texas Rules of Civil Procedure
provides the following in pertinent part:
All process may be served by the sheriff
or anv constable of anv countv in which the
partv to be SSNSd is found, or, if by mail,
either of the county in which the case is
pending or of the county in which the party
to be served is found. . . . (Emphasis
added.)
The courts have held that for a valid service of civil
citation, the officer serving citation must be acting
,within the county in which he is an officer. Hisler v.
Channelview Bank, 538 S.W.Zd 200 (Tex. Civ. App. - Houston
[14th Dist.] 1976, no writ), and authorities cited
therein.
Section 86.021 of the Local Government Code (effec-
tive September 1, 1987) sets forth the general powers and
duties' of the constable:
(a) A constable shall execute and return
as provided by law each process, warrant,
and precept that is directed to the
constable and is delivered by a lawful
officer.
(b) A constable may execute any civil or
criminal orocess throushout the countv in
which the constable's nrecinct is located
and in other locations as orovided bv the
Code of Criminal Procedure or bv anv other
&&I.
(c) The constable shall attend each
justice court held '
in' the precinct.
(Emphasis added.)
Acts 1987, 70th Leg., ch. 149, at 1579. The emphasized
provision was derived from article 6889, V.T.C.S., which
was repealed simultaneously with the enactment' of the
Local Government Code. L at 2547.
0. 3834
Honorable Charles D. Houston - Page 3 (JM-810)
Article 6889, however, was amended by the 70th Legis-
lature to read as follows:
(a) Every constable may execute any
process, civil or criminal, throughout his
county and elsewhere, as may be provided for
in the Code of Criminal Procedure, or other
law.
(b) A constable expressly authorized by
statute to perform an act or service,
including the service of civil or criminal
process, citation, notice, warrant, sub-
poena, or writ, may perform the act or
service anywhere in the county in which the
constable's precinct is located.
(c) Notwithstandino the Texas Rules of
Civil Procedure. all civil orocess may be
served bv a constable in his countv or in a
countv contisuous to his countv, exceot that
a constable who is a uartv to or interested
in the outcome of a suit mav not serve any
process related to the suit. (Emphasis
added.)
Acts 1987, 70th Leg., ch. 713, at 5179. The amendment of
article 6889 became effective on September 1, 1987,
despite the repeal and recodification of the act during
the same legislative session:
(c) The repeal of a statute by a code
does not affect an amendment, revision or
reenactment of the statute by the same
legislature that enacted the code. The
amendment, revision, reenactment *
preserved and given eff% as part of tE
code provision that revised the statute so
amended, revised or reenacted.
(d) If any provision of a code conflicts
with a statute enacted by the same legisla-
ture that enacted the code, the statute
controls.
Gov't Code 5311.031(c), (d). See Attorney General Opinion
JR-761 (1987).
The amended version of article 6889 .provides the
answer to the first question. Accordingly, a constable or
p. 3835
. I
Honorable Charles D. Houston - Page 4 (JM-810)
deputy constable may serve civil process in the county in
which he is elected or appointed or in a county contiguous
to that county.1
The second question is whether all money received by
a constable or deputy constable for serving citation must
be deposited with the county treasurer regardless of where
the citation originates or iS SeNSd. The question is
prompted by a situation in which citation is to be served
in a county other than the county from which it was
issued. The citation is delivered by a private person
(usually the attorney for the party procuring the cita-
tion) to a constable or deputy constable of the county
in which service is sought. The constable or deputy
constable is paid a fee for serving the citation:
apparently, the sum is not taxed and secured as a cost of
court. It is suggested that under these circumstances the
constable or deputy constable may retain whatever fee he
receives from the private person for the performance of
this service. We disagree. It should be noted here that
the duty of a constable to serve citations is unaffected
by the fact that the citation was delivered to the
constable by the attorney for the party procuring the
citation, rather than by a "lawful .officer." Medlin v.
Seidemann, 88 S.W. 250 (Tex. Civ. App. 1905, no writ).
Article XVI, section 61, of the Texas Constitution
requires the commissioners court of every county to
compensate constables and deputy constables on a salary
basis. See Vondv v. Commissioners Court of Uvalde Countv,
620 S.W.2d 104, 108 (Tex. 1981). Section 61 also provides
the following in pertinent part:
1. Rule 103 of the Texas Rules of Civil Procedure,
which suggests that a constable's jurisdiction to serve
process does not extend beyond the borders of his county,
was recently amended by the Texas Supreme Court to make it
clear that sheriffs and constables may serve process
outside their county. The amended rule, which takes
effect January 1, 1988, includes the following relevant
language: "Citation and other notices may be served by
(1) any sheriff or constable or other person authorized by
law or, (2) by any person authorized by written order of
the court who is not less than eighteen years of age."
Order of March 10, 1987, adopting amendments to Texas
Rules of Civil Procedure,- reprinted in The Texas Lawver,
Aug. 3, 1987, at 16-17.
p. 3836
Honorable Charles D. Houston - Page 5 (JM-810)
All fees earned by district, county and
precinct officers shall be paid into the
county treasury where earned for the account
of the proper fund, provided that fees
incurred by the State, county and any
municipality, or in case where a pauper's
oath is filed, shall be paid into the county
treasury when collected and provided that
where any officer is compensated wholly on a
fee basis such fees may be retained by such
officer or paid into the treasury of the
county as the Commissioners Court may
direct.
Section 154.003 of the Local Government Code requires
district, county, and precinct officers who,are paid on a
salary basis to charge and collect all fees for official
services and to dispose of the collected money as provided
by subchapter B of chapter 113 of the code. Section
113.021 requires all fees belonging to the county to be
deposited with the county treasurer in accordance with any
applicable procedures prescribed by the county auditor
under either section 112.001 or section 112.002 of the
code. Accordingly, all fees collected by a constable or
deputy.constable for the performance of an official duty
must be deposited with the county treasurer.
We have been informed that a number of deputy
constables engaged in the practices described above
justify the retention of fees on the theory that since the
citation is delivered to the deputy by a person other than
the clerk of the court, the deputy is acting as a private
process server. Thus, you ask whether a deputy constable
may act as a private process server.
Rule 106 of the Texas Rules of Civil Procedure
provides the following~in part:
(a) Unless the citation or an order of
the court otherwise directs, the citation
shall be served by any officer authorized by
Rule 103 by
(1) delivering to the defendant, in
person, a true copy of the citation with
the date of delivery ,endorsed thereon
with a copy of 'the petition attached
thereto. or
p. 3837
. ,
Honorable Charles D. Houston - Page 6 (JM-810)
(2) mailing to the defendant by
registered or certified mail, with
delivery restricted to addressee only,
return receipt requested, a true copy of
the citation with a copy of the petition
attached thereto.
Rule 103 authorizes service of citation by sheriffs,
constables and, in limited circumstances, clerks of the
court. Rule 106 also provides the following:
(b) Upon motion supported by affidavit
stating the location of the defendant's
usual place of business or usual place of
abode or other place where the defendant can
probably be found and stating specifically
the facts showing that service has been
attempted under either (a)(l) or (a)(2) at
the location named in such affidavit but has
not been successful, the court may authorize
service
(1) by an officer or by any dis-
interested adult named in the court's
order by leaving a true copy of the
citation, with a copy of the petition
attached, with anyone over sixteen years
of age at the location specified in such
affidavit, or
(2) in any other manner that the
affidavit or other evidence before the
court shows will be reasonably effective
to give the defendant notice of the suit.
The courts have construed these rules to require an
officer authorized to serve process by Rule 103 to attempt
service by one of the methods provided in Rule 106(a)(l)
and (2) before the trial court may appoint a private
process server pursuant to Rule 106(b). Lawver's Civil
Process, Inc. v. State ex rel. Vines, 690 S.W.2d 939 (Tex.
APP. - Dallas 1985, no writ). It is apparent, then, that
a deputy constable serving a citation delivered to him in
the circumstances described above is not acting as a
private process server. Furthermore, because we believe a
deputy constable appointed pursuant to Rule 106(b) is
under a legal duty to serve citation, he does not act as a
l*privatel*process server.
p. 3838
Honorable Charles D. Houston - Page 7 (JM-810)
Rule 106(b) permits the trial court, upon a motion
and affidavit stating the required facts, to authorize
service "bv an officer or by any disinterested adult
named in the court's order." Tex. R. Civ. Proc. 106(b)(l)
(emphasis added). Rule 105 emphatically states the duty
of the officer to whom process is.delivered:
The officer to whom process is delivered
shall endorse thereon the day and hour on
which he received it, and shall execute and
return the same without delay. (Emphasis
added.)
The courts characterize as mandatory the duty of sheriffs
and constables to serve all writs and processes presented.
to them. Garcia v. Gutierrez, 697 S.W.2d 758, 759 (Tex.
APP. - Corpus Christi 1985, no writ): Lawyer's Civil
Process, Inc. v. State ex rel. Vines, suura. See
oenerally Attorney General Opinion Nos. H-595 (1971); S-71
(1953). Accordingly, we conclude that a deputy constable
authorized to serve citation pursuant to Rule 106(b) does
not act as a private process server, but is under a,legal
duty to serve citation.
SUMMARY
A constable or deputy constable may
serve civil process in the county in which
he is elected or appointed or a county
contiguous to that county. Acts 1987, 70th
Leg., ch. 713, at 5179 (amending article
6889, V.T.C.S.). All money received by a
constable or deputy constable for serving
citation must be deposited with the county
treasurer of his county. A deputy constable
authorized to serve citation pursuant to
Rule 106(b) of the Texas Rules of Civil
Procedure does not act as a private process
server, but is under a legal duty to serve
citation.
J x&N
Very truly yo
A
JIM MATTOX :
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
P. 3839
Honorable Charles D. Houston - Page 8 (JM-810)
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General
p. 3840