   OFF,CE   OF THE   ATTORNEY   GENERAL   STATE   OF TEXIIS

   JOHN     CORNYN




                                                   May 26, 1999



The Honorable William C. “Bill” Sowder                        Opinion No. JC-0056
Criminal District Attorney
Lubbock County Courthouse                                     Re: Whether a constable may execute service of
P. 0. Box 10536                                               process to enforce the compulsory       school
Lubbock, Texas 79408-3536                                     attendance provisions of the Education Code
                                                              (RQ-1147)


Dear Mr. Sowder:

         You ask whether a constable may be required to serve legal process on individuals who fail
to appear at a truancy hearing. You specifically ask whether section 25.091 ofthe Texas Education
Code, which grants school attendance officers the power and duty to serve legal process, means that
only an attendance officer may serve legal process dealing with the compulsory attendance
provisions of the Education Code, thus making it unlawful for a constable to serve the same. You
say that the constables have argued that they may not legally serve these summons since the
Education Code places the power and duty on the attendance officer. In our view, constables, when
directed to do so by a lawful officer such as a justice of the peace, may also serve legal process on
a person who fails to appear at a truancy hearing. Further, constables do not have discretion to
determine what process they will serve, when such service has been ordered by a lawful magistrate.

        In a county or independent school district that has selected a school attendance officer, the
attendance officer has the express power and duty to investigate each case of unexcused absence
from school, to administer oaths and serve legal process, and to enforce the compulsory school
attendance law. TEX. EDUC. CODE ANN. § 25.091(a)(l), (2), (3) (Vernon 1996). However, the
Education Code provides that “[i]n addition to enforcement by a school attendance officer, the
compulsory attendance provisions of this subchapter may be enforced by any peace officer, as
defined by Article 2.12, Code of Criminal Procedure.” Id. 5 25.096. Constables and deputy
constables are peace officers. TEX. CODECRIM. PROC. art. 2.12 (Vernon Supp. 1999). Given these
provisions, the question is whether section 25.091 confers an exclusive grant of authority to serve
legal process in truancy matters to the attendance officer alone.

        The grant of authority to attendance officers is not exclusive. No language restricting the
power to serve process in these matters to attendance officers is to be found in section 25.091, and
section 25.096’s provision that “any peace officer” may enforce the attendance law provides strong
evidence to the contrary. Sections 25.091 and 25.096 may be harmonized by reading them together
to provide authority to attendance officers and to any other peace officers (in which category
The Honorable   William C. “Bill” Sowder     - Page 2     (JC-0056)




constables are included) to serve process designed to enforce the compulsory     attendance law when
such peace officers are directed by the court to do so.

        Moreover, in our view, constables do not have the discretion to decide for themselves that
they will not serve process when directed by a magistrate of competent jurisdiction to do so.
Constables have broad authority to serve legal process. TEX. LOCAL GOV'T CODE ANN. 5 86.021
(Vernon 1998 & Supp. 1999). Indeed, 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 lawful officer.”
Id. A constable who “fails or refuses to execute and return according to law a process, warrant, or
precept” directed to him by the court is subject to being “fined for contempt before the court that
issued the process, warrant, or precept on the motion of the person injured by the failure or refusal.”
Id. 5 86.024(a) (Vernon. 1988).


        Given these provisions, it is our opinion that constables do not have discretion to refuse to
serve process directed to them by a justice of the peace. In Merritt Y. Harris County, 775 S.W.2d
17 (Tex. App.-Houston      [14th Dist.] 1989, writ denied), the court addressed the discretion of
constables as follows:

                         In executing writs . . , [clonstables carry out a duty
                prescribed by the Texas [Clonstitution or the legislature.       As an
                officer of the Court, they do not have the authority to define
                objectives in the execution ofthe court’s writ.       Under Texas law,
                    [clonstables are not policymaking officials ofcounty government
                when performing their narrowly circumscribed duty to execute a writ
                         Even though they are elected officials, they do not hold full
                sway over the tasks entrusted to them so as to constitute official
                policy making authority. Though they possess a limited range of
                discretion in executing a writ, their power to make and enforce policy
                in this area is constrained by the courts, the constitution, and the
                legislature. They are not given that range of discretion or choice that
                is at the core of the power to impose one’s chosen policy for they do
                not define the objectives of a writ.

Id. at 24.


         We conclude that a constable may, pursuant to the provisions of Education Code section
25.096, serve process on an individual who has failed to appear at a truancy hearing. Although a
school attendance offtcer, pursuant to Education Code section 25.09 1, would generally serve process
in a truancy hearing case in a county that has selected a school attendance officer, a constable may
also serve the process if directed to do so by a lawful officer.
The Honorable   William C. “Bill” Sowder     - Page 3     (X-0056)




                                        SUMMARY

                     A constable may serve legal process on an individual failing to
                appear at a truancy hearing. Even though this duty would generally
                be performed by the school attendance officer in those counties that
                have selected a school attendance officer, it is lawful for a constable
                to serve any legal process addressing the compulsory attendance
                provisions of the Education Code.




                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General
