L




                E   .L’%TTOMNEY       GENERAL
                        OF   TEXAS




                              Febliuary 17, 1950

     Hon. A. 0. Winborn               Opinion No. V-1002.
    .Diatriot Attorney
     Houston, Texas                   Re: The authority of the
                                          Sheriff   to refuse to
                                          levy out-of-county
                                          executions    whioh are
                                          not aclcompenled by
                                          the statutory    fees
    Dear Sir:                             or pauper’s oaths.
               Your requeat for an opinion relating    to fees
    for exeoution of ppooeaa la substantially    as followe:
               ‘The Civil Department of the Sheriff’s
         Offioe of Harris County has reoeived,         and
         ia still   reoeivlng   many exeoutiow      in olv-
         11 cases from oountiea other than Harris
         County requesting thatthe Sheriff        levy and
         return said exeoutlone.       They are not aocom-
         panied by any fees, 88 provided by Statute,
         or paupers 1 oaths, aa provided by the Rules
         of Civil Procedure.       The Sheriff has, without
         aucceaa, requested that the Statutory         fees be
         paid in advance.      I am advlaed that the Coun-
         ty Auditor has emphatioally       stated that un-
         less these fees are oolleoted       he will hold
         the Sheriff    personally   responeible    for them;
         the fees going to the General Fund and not
         to the Sheriff personally.        The parties who
         have requested these aervioes of the Sher-
         iff’s   Department and who have failed to pay
         the fees in advanae are now threatening to
         sue the Sheriff     and his bondsmen for fail-
         ure to exeoute and return these executions.
                “I am reliably Informed that sheriffs
          of other oountlea throughout the State are
          oonfronted with the same qwation.
          “QUESTION  : Is the Sheriff  legally   juetlfl-
          ed In refueing to levy end re%urn these
          out-of-aounty  exeoutiona where they are not
          accompanied with the Statutory    fees or
Bon. A. C. Wlnborn,         page 2     (V-1002)


       pauper’s    oaths?”

          We agree with                oonclualon you have reached
in the able brief acoompa             lng your request.
            Article      3933,   v.d.~.,    provides     the following
fees   in part:
             “Sheriffs     and constables        shall   reoelve
       the following      fees :
       Levying each execution,       . . . . . . . . . 1.00
       Return of execution,    . . . . . . . . . . . . t 1.00.”
           Rule 17 of the Texas Rulea of Civil                    Proaedura
1s aa follows :
              “Except where otherwlae expressly pro-
       vlded by law or these rules, the offloer
       recelting   any process to be executed shall
       not be entitled   in any oaae to demand his
       fee for executing the same In advance of
       suoh execution,   but his fee shall be taxed
       and collected   as other costs In the case.”
           Rule 126 of the Texas Rulea of Civil                    Procedure
Is aa follows:
              “No aherlff  or constable   ahall be com-
       pelled to execute any process In civil       casea
       aomlng from any county other than the one In
       which h8 is an officer,     unless the fees allow-
       ed hLm by law for the service of such process
       shall be paid In advanoe; exoept when afir-
       davit la filed,    as provided by law or these
       rules.    The clerk Issuing the prooess ahall
       lndorse thereon the words, ‘pauper oath fll-
       ed, I and sign his name offloially      below them;
       and the officer    In whose handa auoh process
       la placed for service shall serve the same.”
           By 1+)aaon of the firat portion of Rule 126 it
is evident that the offloer    executing  process in clvll
oaaea coming from another ootiuty may require Us fees in
advance for the servioe of process.      It la our opinion
that the last portion of the flrat sentence of said Rule
which atatea,   ‘except when affldavlt   la filed, as provld-
ed by law or these rules” has refer8nce to the affldavlt
_   .




        Bon. A. C. Wlnborn,   page 3   (V-1002)


        filed wherein the inability  to pay ooata Is brought to
        the attention  of the Court.  This being true the clerk
        merely lndorses on the process the worda "pauper oath
        filed."
                  Rule 145 of the Texas Rules of Civil Procedure
        la the Rule authorizing  a party to execute an affidavit
        that he la too poop to pay the costs of court and his
        lnablllty to give aeourlty therefor.
                   By raason of the foregoing  and particularly
        the olear Import of Rule 126, It la the opinion of this
        office  that a sheriff  or constable may require fees In
        advance or the execution of a pauper's oath for the ser-
        vice of process coming from any oounty other than the
        one In which he la an officer.
                                  SUMMARY
                   A sheriff or box&able may not be com-
             pelled to execute prooeas In civil  cases
             coming from any county other than the one
             in which he la an officer  unless the fees
             allowed by lew for such service of process
             are paid In advenae or a pauper's oath Is
             filed in lieu thereof.
                                                  Yours   very    truly,

                                                    PRICE DANIEL
        APPROVRD:                                 Attorney General
        J. C. Davis, Jr.
        County Affairs Division
        Charles D. Mathews                          Burnell      Waldrep
        Executive Assistant                                   Assistant

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