                                          GREG
                                                o
                              ATTORNEY GENERAL OF TEXAS
                                                      ABBOTT




                                                May 29,2012



The Honorable Jeff Wentworth                             Opinion No. GA-0940
Chair, Select Committee on Open Government
Texas State Senate                                       Re: Authority of a constable with regard to
Post Office Box 12068                                    payment of outstanding warrants issued by a
Austin, Texas 78711-2068                                 justice court (RQ-I024-GA)

Dear Senator Wentworth:

        You ask four questions related to a constable's authority to exercise discretion with regard
to the execution of warrants. 1 You first ask whether a constable has the "authority within existing
law to offer payment arrangements to, or accept partial payment from, defendants with outstanding
warrants issued by a justice court[.]" Request Letter at 1. A constable is limited to those powers
expressly conferred by or necessarily implied from the constitution and statutes. Tex. Att'y Gen. Op.
No. GA-0656 (2008) at 1. The Legislature has expressly authorized constables to make collections
on behalf of the county in various circumstances. See, e.g., TEX. CODE CRIM. PROC. ANN. art.
 103.003(a) (West Supp. 2011); see also TEX. Loc. GOy'T CODE ANN. § 86.023 (West 2008)
(explaining constable's collection liability); but see Tex. Att' y Gen. LO-96-031, at 2 (concluding that
a constable is not authorized to collect restitution for a bad check). Furthermore, the Legislature has
authorized the courts to waive fees for defendants in certain circumstances. See, e.g. , TEX. CODE
CRIM. PROC. ANN. art. 45.0491 (West Supp. 2011) (authorizing the waiver of fees for indigent
defendants). However, we find no express authority giving a constable discretion to waive fees,
negotiate payment plans, or accept partial payment from a defendant. When a constable executes
a warrant, he or she is carrying out an order of the court. "As an officer of the court, [constables]
do not have the authority to define objectives in the execution" of the court's orders. Merritt v.
Harris Cnty., 775 S.W.2d 17,24 (Tex. App.-Houston [14th Dist.] 1989, writ denied). Thus, absent
express authori ty to do so, we conclude that existing law does not allow a constable to offer payment
arrangements to, or accept partial payment from, defendants with outstanding warrants issued by a
justice court.

       Your second question asks whether a constable has "authority within existing law to accept
in-person payments (partial or in their entirety) for one offense while not arresting the defendant on



         lSee Letter from Honorable Jeff Wentworth, Chair, Senate Select Comm. on Open Gov ' t, to Honorable Greg
Abbott, Tex. Att' y Gen. at 1 (Nov. 8, 2011), http ://www.texasattorneygeneral.gov/opin ("Request Letter").
The Honorable Jeff Wentworth - Page 2         (GA-0940)




other outstanding warrants issued by a justice court[.]" Request Letter at 1. Relatedly, your third
question asks:

               Does a constable have authority within existing law to establish a
               policy for his/her administration that effectively or intentionally
               reduces the emphasis on the execution of warrants issued by a justice
               court for any period of time (i.e., if the administration has met its
               budget requirements for the current year and makes a policy decision
               to reduce emphasis on warrants and puts off the execution of
               outstanding warrants to another budget year)?

Request Letter at 1. Because these questions both address whether and to what extent a constable
has discretion with regard to the timing of execution of warrants, we answer them together.

         Local Government Code section 86.021 lists a constable's general powers and duties. TEX.
Loc. GOy'TCODEANN. § 86.021 (West Supp. 2011). The plain language of subsection 86.021(a)
is clear: "[a] constable shall execute and return as provided by law each process, warrant, and
precept that is directed to the constable." [d. § 86.021(a) (emphasis added). The Legislature's use
of the word shall "imposes a duty" on the part of constables, and constables may not refuse to fulfill
their statutory duties. TEX. GOy'T CODE ANN. § 311.016(2) (West 2005). Furthermore, "[i]f a
constable fails or refuses to execute and return according to law a process, warrant, or precept that
is lawfully directed and delivered to the constable, the constable shall be fined for contempt .... "
TEX. Loc. GOy'T CODE ANN. § 86.024(a) (West 2008). However, section 86.021 does not establish
a clear deadline within which a constable must execute a warrant. Courts and this office have
recognized that constables have some discretion when they fulfill their duty to carry out the courts'
orders. See Rhode v. Denson, 776 F.2d 107, 109 (5th Cir. 1985) (recognizing that constables possess
a "limited range of choice" in executing warrants); Arrington v. Cnty. of Dallas, 792 S.W.2d 468,
471 (Tex. App.-Dallas 1990, writ denied) ("A high degree of discretion is necessary ... in fulfilling
duties for service of process."); Tex. Att'y Gen. Op. No. GA-0560 (2007) at 3 ("Even in serving
process a constable may exercise some discretion."). A constable with multiple outstanding warrants
to execute at a given time will necessarily have to exercise judgment and prioritize when determining
which warrants to execute first. A decision to temporarily delay executing a warrant mayor may not
violate the constable's duty under section 86.021, depending on facts specific to that decision.
However, given the risk of being held in contempt of court for failure to execute a warrant, a
constable should execute an outstanding warrant in as timely a manner as possible.

        Your final question asks:

               Does a constable or his/her administration have authority within
               existing law to direct that some defendants with outstanding warrants
               issued by a justice court be placed in Tiburon or any other inter-
               agency law enforcement reporting systems, while others were not
The Honorable Jeff Wentworth - Page 3          (GA-0940)



                (effectively limiting the ability of other areas of law enforcement to
                have knowledge of some outstanding warrants)?

Request Letter at 2. Your request letter does not direct us to any authority specifically addressing
a constable's duty to report-electronically or otherwise-outstanding warrants. However, we note
that chapter 60 of the Code of Criminal Procedure establishes a criminal history record system,
which is maintained by the Department of Public Safety and must include specific information about
certain offenders. TEX. CODECRlM. PROC. ANN. arts. 60.02(b), .051(a) (West 2006 & Supp. 2011).
The Legislature requires that an "arresting agency ... initiate the reporting process for each offender
charged with a felony or a misdemeanor not punishable by fine only," and it specifies what
information must be included for each offender. !d. arts. 60.08(b), .051 (West Supp. 2011); see also
37 TEX. ADMIN. CODE § 27.101(c) (2012) (Tex. Dep't of Pub. Safety, Computerized Criminal
History Sys.) (requiring that local law enforcement agencies "must report ... the information
required by Texas Code of Criminal Procedure, Chapter 60"). Whether a constable is required to
report a specific offender to the criminal history record system may depend on certain facts,
including the nature of the offense. Constables, as law enforcement officers, have no discretion
when fulfilling this duty and must comply with the requirements imposed by Code of Criminal
Procedure, chapter 60. 37 TEX. ADMIN. CODE § 27.101(c) (2012) (Tex. Dep't of Pub. Safety,
Computerized Criminal History Sys.).
The Honorable Jeff Wentworth - Page 4        (GA-0940)



                                      SUMMARY

                      Texas law does not allow a constable to offer payment
               arrangements to, or accept partial payment from, defendants with
               outstanding warrants issued by a justice court.

                     A constable's decision to temporarily delay executing a
              warrant could, depending on the facts involved, violate the
              constable's duty under Local Government Code section 86.021 to
              execute and return as provided by law each warrant that is directed to
              the constable.

                    . Constables must report the information required by Code of
               Criminal Procedure, chapter 60, to the criminal history record system
               established under that chapter.

                                             Very truly yours,



                                                                 ~
                                                                 OTT



DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee
