                               September     17, 1975


The Honorable George N. Rodriquez,         Jr.     Opinion No. H- 69”4
County Attorney
Room 201, City-County Building                     Re: Whether a constable or
El Paso, Texas 79901                               sheriff may send notices of
                                                   eviction on behalf of his private
                                                   employer and use his official
                                                   letterhead or title.

Dear Mr.   Rodriques:

      You have asked our opinion as to the scope and application of article
397 Sa, V. T. C. S. , which provides for notice preliminary to forcible detainer
actton.  You particularly   ark:

                   1. Can a constable or a Sheriff, while
                   acting in his or her private capacity as
                   an agent or employee of a landlord, send
                   a tenant a notice of eviction form which
                   is headed “THE COUNTY OF                 II
                   or “THE STATE OF TEXAS” or bears on
                   its face the seal of the State of Texas?

                   2. Can a constable or Sheriff,        while
                   acting in his or her private capacity as
                   an agent or employee of a landlord,         send
                   a tenant a notice of eviction,    indicating on
                   said notice of eviction his or her official
                   title (i. e. , Sheriff or constable)?

     You have furnirhed    background    information which prompted     your questions
by explaining that:

                   The El Paso Sheriff and/or constables and their
                   deputies are serving eviction notices to tenants in
                   their private capacities as agents and employees
                   of landlords,  purportedly pursuant to Article   39754
                   V. A. T. S. In some cases, these notices bear on
                   faces the seal of the State of Texas.  In addition,
                   the notices often refer to the County of El Paso or
                   to the State of Texas.




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The Honorable    George   N. Rodriguez,   Jr.,   - Page 2 (H-694)



     Article   3975a provides:

                         That except where otherwise contracted
                    orally or by written lease, upon default in
                    payment of rent by a tenant, any landlord
                    leasing to a tenant for a tenancy in excess of
                    a period of week to week, upon default of
                    payment of rent, shall give to such tenant a
                    minimum of three (3) days written notice to
                    vacate such premises delivered in person or
                    by mail to the leased premises prior to filing
                    an action for forcible entry or detainer.    Upon
                    the expiration of at least said three (3) days or
                    stipulated length of notice, calculated from the
                    date of delivery of the notice to the premises,
                    if the tenant has not vacated said premises,
                    action in forcible detainer or at common law
                    may be commenced.        Notice to vacate under
                    the circumstances    provided herein shall sup-
                    plant existing periods of notice at common law.

      Sheriffr and constables are statutorily required to “execute” all judicial
“process” and “precepts”     “directed” to them by legal authority. V. T. C. S.
arts. 6873, 6885. However,       it is obvious that the eviction notice contemplated
by article 3975a is not “process”     or a “precept” issued by legal authority and
that sheriffs and constables have no duty, authority or power to “execute” such
notice.,

        Accordingly,  it would appear that where a sheriff or constable purports to
execute the eviction notice asprovided       by article 3975a (as he would seemingly
do where the notice is headed “The County of                           “or “The State
of Texas” and bears the seal of the State of Texas, and as he would almost
certainly     do where the notice bears the official title of the sheriff or constable),
such sheriff or constable has committed an act constituting “an unauthorized
exercise of his official power” and/or an act “under color of his office . . . that
exceeds hia official power” in violation of section 39. 01, subsections (a)( 1) and
(a)(2),   Penal Code.    A possible violation of article 37. 10, Penal Code, is further
indicated since the notice as sent by the sheriff or constable may be a “document”
that,is intended to “be taken as a genuine governmental        record. I’

       Additionally,  the private activities of the sheriff and constable, presumably
for remuneration,      which you describe may constitute     a criminal violation of
article 17. 08 (a)(2). Business and Commerce        Code, forbidding the use of the
“Great Seal of Texas for a commercial        purpose” and a deceptive trade practice
as defined by section 17.46 of the Business and Commerce           Code, providing for
civil penalties.




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         The Honorable   George    N. Rodriguez,     Jr.,      - Page   3 (H-694)



               To reiterate,   the use of “The County of                 , ” “The State of
         Texas, ” the seal of the State of Texas, or any representation    that a notice of
         eviction  is the official act of the sheriff or constable as you have described, may
         constitute violations of several Texas penal and civil laws.

                                           S~UMMARY

                                 It is improper and illegal for a sheriff
                             or constable to send eviction notices as
                             authorized by article 3975a, V. T. C. S. ,
                             with any notations thereon that would
                             make the notice appear to be the official
                             act of a court or of an officer of the State
                             of Texas.

                                              -Very           truly your*,




                                                   Attorney       General    of Texas




         Opinion Committee


         jad:




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