                         @ffice of tly 9lttornep Qkneral
                                 &ate of PCexarl
DAN MORALES                          September 15,1992
 ATTORNEY
      GENERAL
    Honorable Mike Driscoll                 Opinion No. DM-164
    Harris County Attorney
    1001 Preston, Suite 634                 Re: Whether a county constable is under a
    Houston 77002-1891                      statutory duty to serve civil process issued by
                                            federal courts (RQ-133)

    Dear Mr. Driscoll:

           You ask whether county constables have a statutory duty to serve civil
    process and other orders issued by federal courts. If they are not under such a duty,
    you ask whether county constables may perform these services in their private
    capacities. We conclude that county constables are not required by state law to
    serve such instruments in their official capacity.

           Section 86.021 of the Local Government Code provides the following:
                  (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 lawfulofficer.
                  (b) A constable may execute My civil or criminal process
              throughout the county in which the constable’s precinct is
              located and in other locations as provided by the Code of
              Criminal Procedure or by any other low.
                   (c) A constable expresslyauthor&d by tiutute to perform an
              act or service, including the service of civil or criminal process,
              citation, notice, warrant, subpoena, or writ, may perform the act
              or service anywhere in the county in which the constable’s
              precinct is located.
                   (d) Regardless of the Texas Rules of Civil Procedure, all
              civil process may be served by a constable in the constable’s
              county or in a county contiguous to the constable’s county,
              except that a constable who is a party to or interested in the
              outcome of a suit may not serve any process related to the suit.




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Honorable Mike Driscoll - Page 2        W-164)




              (e) The constable shall attend each justice court held in the
          precinct. [Emphasis added.]
        Gur research has yielded no Texas authority directly in point, but we think it
is clear the language emphasized above refers exclusively to state law and to legal
process issued by Texas courts. Texas courts have held that in executing civil
process, county sheriffs and constables are officers of the court, carrying, out duties
prescriied by state law or constitution See Henry S. iUiUerCo. v. Evans, 452 S.W.2d
426 (TX 1970); Menin v. Hanis County, 775 S.W.2d 17 (Tex. App.-Houston [14th
Dist.] 1989, writ denied). This office has previously analyxed the duty of the sheriff
to execute process under state law as encompassing legal process and writs issued by
stafe authorities, without reference to process issued by federal courts. Attorney
General opinion H-595 (1975). We think the duty of a constable to serve such
instruments is grounded in a similar policy. cf; Attorney General opinion JM-810
(1987) (e xamining duty of constables to serve citation under Ten R. Civ. P. 106(b),
which applies to, inter a&u. “officers”). Constables are also required to attend each
justice court held in their precincts. L.ocaI Gov’t Code 0 86.021(e). It is evident,
then, that constables fulfill an important role in the administration of the state
judicial system. Consequently. we believe the duties conferred by section 86.021
relate specifically to civil process issued by state courts.

        Gur conchtsion is supported by a decision cited in your brief, Potomac
Lenring Co. v. Uriurre, 126 F.R.D. 526 (S.D. Tex. 1988). The decision explained the
court’s denial of a motion to have the Galveston County Sheriffs Department
specially appointed to execute a judgment obtained in federal court. The
appointment was sought under rule 4(c)( 1) of the Federal Rules of Civil Procedure
which states, “Process, other than a subpoena or a summons and complaint, shall be
served by a United States marshal or deputy United States marshal, or by a person
specially appointed for that purpose.” A judgment creditor requested the sheriffs
department execute the judgment obtained by the creditor. The sheriff refused the
request. The judgment creditor then moved to have the sheriff appointed to execute
the judgment pursuant to rule 4(c)( 1).

       The court denied the motion, expressing the view that comity dictated that a
federal court should no more exercise its power to order the sheriff to execute on
the federal judgment than should a state court attempt to compel a United States
marshal to execute on a state judgment. 126 F.R.D. at 527. In addition, the court
concluded that rule 4(c)(l) contemplates a person’s willing assumption of the
obligation to serve process under special appointment. Absent such cooperation,
the court declined to exercise. its broad discretion to order the sheriff to act.


                                       p. 863
Honorable Mike Driscoll - Page 3        W-164)




        This office has previously concluded that constables have a nondiscretionary
legal duty to serve civil process properly delivered to them under state Jaw and rules
of civil procedure. Attorney General Opinion JM-810 (discussing Tex. R. Civ. P.
103, 105, 106). Sheriffs are subject to the same rules. Thus, it may reasonably be
inferred that in concluding that the sheriff had the discretion to refuse to execute
the judgment, the court in Uriarte determined that the sheriff was under no official
duty arising under state law to perform the requested service. Accordingly, we
conclude that a constable is not required by section 86.021 to serve civil process
issued by federal courts.

        Your second question, conditioned on a negative response to your first
question, is whether a constable is authorized to perform these services in his
individual capacity. Attorney General Opinion V-733 (1948) concluded that a
county constable is not required to account for fees collected for the performance of
services that are not part of the constable’s statutory duties. A necessary premise to
this conclusion is that unless prohibited by law (including his oath that he will
faithfully execute the duties of his office.,see Tex Const. art. XVJ, !I l), a constable
may perform services that are not part of his official duties. Attorney General
Opinion JM-810 essentially concludes that a constable may not act as a private
process server with regard to civil process issued by a state court, but you have
identified no provision of law, and we are aware of none, which prohibits a
constable from serving process issued by federal courts in his private capacity.
Consequently. we conclude that a constable is not prohibited from serving civil
process issued by federal courts in his private capacity provided such service does
not interfere with the constable’s official duties.

                                 SUMMARY

               A county constable is not required to serve civil process
          issued by federal courts in his official capacity under section
          86.021 of the Local Government Code. A constable is not
          prohibited from performing such services in his private capacity
          provided such service does not interfere with the constable’s
          official duties.




                                                   DAN       MORALES

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Honorable Mike Driscoll - Page 4     W-164)




WILL PRYOR
First Assistant Attorney General

MARYKELLBR
Deputy Assistant Attorney General

RENEAHIcRs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Steve Arag6n
Assistant Attorney General




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