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
