Judges: RICHARD P. IEYOUB
Filed Date: 8/25/1998
Status: Precedential
Modified Date: 7/5/2016
Dear Mr. Duplantis:
This office is in receipt of your request for an opinion of the Attorney General on behalf of the Sheriff of St. Mary Parish in regard to service of district court documents by the city court marshals. You indicate in an effort to improve efficiency the Sheriff would like to have the city court marshals for the City Courts in Morgan City and Franklin serve certain district court documents within their respective territorial jurisdictions. The sheriff proposes to enter into a cooperative agreement with each marshal's office to compensate it for such service if there is no legal prohibition which would make such compensation improper. Accordingly, you present the following:
1. Article
332 of the Code of Civil Procedure provides that "When authorized to do so by the Sheriff, a constable or marshal of a city court, within the territorial jurisdiction of his court, may serve any process and execute any writ or mandate which the sheriff is authorized to serve or execute." In Attorney General Opinion 92-165 your office held that article 322 allowed the sheriff to compel such service. Our question is: (a) is that still the opinion of your office, and (2) if so, must such be done without compensation to the marshal's office.2. What effect, if any, would the provisions of R.S.
13:1881 (B) have on the Sheriff's proposal to compensate the marshals. See Attorney General Opinions 92-775 and 96-527.
We find C.C.P. Article
When authorized to do so by the sheriff, a constable of a justice of the peace court or a constable or marshal of a city court, within the territorial jurisdiction of his court, may serve any process and execute any writ or mandate which the sheriff is authorized to serve or execute.
For such purpose, the constable or marshal possesses the powers and authority of the sheriff; a service or execution so made had the same effect as if made by the sheriff; and the latter is responsible for the performance or nonperformance of his duties by a constable or marshal in such cases.
As you point out, Atty. Gen. Op. No. 92-165 stated that "the chief of police and/or his deputies may be compelled to make or effect service of process within his jurisdiction under C.C.P. Art.
We see no reason to conclude that this opinion stands for anything beyond the clear provisions of C.C.P. Art.
This office has recognized the constitutional prohibition of the donation of public funds in Art. VII, Sec. 14 does not extend to cooperation endeavors by public agencies. Paragraph (C) of Section 14 authorizes the State and its political subdivisions to engage in cooperative endeavors for a public purpose with other governmental agencies. However, to merely serve a public purpose is not sufficient in itself to fulfil the requirements for the cooperative endeavor, and this office has stated in accordance with the jurisprudence that to fall within this provision it is necessary that the parties in the transfer have a legal obligation to perform the function for which the transfer of funds is made.
In the instant situation the statutory provisions allow for the service of documents by the city court marshal upon the direction of the sheriff, and since there is a legal basis on the part of the marshal, there would be no prohibition against the sheriff compensating the marshal's office for the service with the recognition of certain restrictions on the salary of the marshal and deputy.
This brings us to your second inquiry as to what effect, if any, would the provisions of R.S.
In Atty. Gen. Op. 92-775 this office concluded that R.S.
In this regard it should be noted that R.S.
That opinion further stated while the marshal may use the funds available to supplement the salary of his deputy marshal or to hire additional deputy marshals, R.S.
To this extent we feel under an agreement for a cooperative endeavor the sheriff may compensate the office of the marshal for service of documents made at his request, but such funds cannot be used in violation of R.S.
We hope this sufficiently answers your inquiry, but if we can be of further assistance, do not hesitate to contact us.
Sincerely yours,
RICHARD P. IEYOUB Attorney General
By: __________________________ BARBARA B. RUTLEDGE Assistant Attorney General
BBR