                        May 17, 1989




Honorable G. Dwayne Pruitt     Opinion No.    JM-1046
Terry County Attorney
Terry County Courthouse        Re: Whether sheriffs or con-
Brownfield, Texas 79316        stables are entitled to fees
                               for unsuccessful attempts at
                               service of    civil   process
                               (RQ-1660)

Dear Mr. Pruitt:

     You ask whether sheriffs and constables are entitled to
charge a fee for unsuccessful attempts at service of pro-
cess. The resolution of your question turns on the author-
ity of the commissioners   court to set such a fee under
section 118.131 of the Local Government Code.

     In Attorney  General Opinion JM-880     (1988) relevant
provisions of section 118.131 and the history of these pro-
visions were succinctly set forth, as follows:

           In 1981, the legislature enacted    article
        3926a, V.T.C.S. (since codified as     section
        118.131 of the    Local Government      Code),
        reading:

              (a) The commissioners court of each
           county may set reasonable   fees to be
           charged for services by the offices of
           sheriffs and constables.

              (b) A commissioners court may not     set
           fees higher than is necessary to pay     the
           expenses of providing the services.

        Acts 1981, 67th Leg., ch. 379, § 1, at 1001.

           Subsection 2(a) of the bill that enacted
        article 3926a contained the following provi-
        sion:  'Fees provided  for sheriffs and con-
        stables in other laws in conflict with this
        Act are repealed to the extent they conflict




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Honorable G. Dwayne Pruitt - Page 2     (JM-1046)
                    .



        with this Act.'   Id. at 0 2.    But the    bill
        also stated, in section 3(b):

              Until a commissioners court prescribes
           different fees pursuant to Article  3926a,
           Revised Civil Statutes of Texas, 1925, the
           fees charged by a sheriff or constable are
           those provided by the law in effect on
           August 31, 1981. Fees charged by a sher-
           iff or constable for services performed
           before the effective date of this Act are
           governed by the law in effect at the time
           the services were performed.

Attorney General Opinion JM-880   (1988), at 1-2.

     In Attorney  General Opinion JM-880 it was concluded
that the commissioners   courts may not set fees for the
execution of criminal warrants by a sheriff or constable and
that the general repealer of conflicting statutes found in
the bill that enacted      former article 3926a was      not
applicable in criminal cases.1

     Focusing on the narrower  issue of whether the commis-
sioners court may set a fee for unsuccessful attempts     to
serve civil process, you call attention to Attorney  General
Opinion H-756 (1975) stating that a sheriff is not entitled
to a fee for an unsuccessful attempt to serve process under
former article 3933a, V.T.C.S.   Article 3933a was repealed
by article 3926a, effective September 1, 1981. Acts 1981,
67th Leg., ch. 379, 5 2(b), at 1001.




     1. The opinion reasoned that an attempt to set fees in
misdemeanor cases was unconstitutional in that "[a] law
allowing different    costs to be assessed    in   different
counties for the same penal offense would have the affect of
allowing the penalty for state-defined crimes to vary   from
county to county and would violate both 'due process'    and
'equal protection'  constitutional rights."   It was stated
that while the same reasoning would apply to felony cases,
it was unnecessary    to utilize such analysis    since the
provisions of the Code of Criminal Procedure governing  fees
in felony cases were repealed by the 69th Legislature      in
1985. Acts 1985, 69th Leg., ch. 269, at 1300, 1307. It was
concluded that the.application  of section 118.131 to civil
cases was unaffected.




                             P. 5427
Honorable G. Dwayne Pruitt - Page 3 (JM-1046)




     In Attorney General Opinion JM-193      (1984) it was
concluded  that commissioners   courts may set fees     for
services performed by sheriffs and constables in accordance
with article 3926a, even though no fee for the service was
authorized prior to September 1, 1981.

     In Attorney General Opinion JM-51 (1983) it was noted
that prior to the repeal of article 3933a, sheriffs and con-
stables were not entitled to receive fees from the Indus-
trial Accident  Board for serving subpoenas   issued by the
board. However, it was concluded that under article 3926a
(now section 118.131) a charge for serving such subpoenas
was appropriate, provided the charge was authorized by the
commissioners court.

     We do not believe that Rule 17 of the Texas Rules of
Civil Procedure prohibits     a commissioners   court   from
authorizing a fee for an unsuccessful attempt to serve civil
process by a sheriff or constable. Rule 17 provides:

           Except where otherwise expressly provided
        by law or these rules, the officer receiving
        any process to be executed shall not be
        entitled in any case to demand his fee for
        executing  the same    in advance of    such
        execution, but his fee shall be taxed and
        collected as other costs in the case.

     The source for Rule 17 was article      3911, V.T.C.S.,
repealed, Acts 1939, 46th Leg., ch.25,     g 1, at 201, and
codified as Rule 17. Prior to the repeal of article    3933a
disallowing a fee until service is performed      and return
made, Attorney General Opinion H-756 (1975) construed   Rule
17 as prohibiting a county or district clerk from collecting
as court costs a fee for service of process prior to the
actual service and return of process. Section 2(a) of the
bill that enacted article 3926a       (now section 118.131)
contained the following provision.

           Fees provided for sheriffs and constables
        in other laws in conflict with the provisions
        of this act are repealed to the extent they
        are in conflict with this act.

Acts 1981, 67th Leg., ch. 379, 5 2(a), at 1001.

     No reason is perceived why a commissioners court may
not set reasonable fees for services performed by sheriffs
and constables in unsuccessful attempts at service of civil
process under the authority granted the commissioners court




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                                   .




Honorable G. Dwayne Pruitt - Page 4      (JM-1046)




to set reasonable fees for services by such officers.  How-
ever, until a commissioners court sets a fee pursuant    to
section 118.131, a sheriff or constable is not entitled to
any fee for an unsuccessful attempt to serve process.

                       SUMMARY

           Commissioners courts may set reasonable
        fees for services performed by sheriffs and
        constables in unsuccessful attempts to serve
        civil process.

                                       Very truly ~02   ,


                                       J hffiJ&
                                       JIM
                                           L
                                               MATTOX
                                       Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General




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