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                                             April 29, 1975


         The Honorable Joe Resweber                          Opinion No. H- 595
         County Attorney
         Harris County Courthouse                            Re: Duty of sheriff to execute
         Houston, Texas   77002                              civil process and liability for
                                                             failure to do so.

         Dear Mr.   Renweber:

                 You have requested our opinion concerning the duty of a sheriff to
         execute civil process and whether he would be subject to any liability for
         failure to do so because of a shortage of deputies to execute process directed
         to him. You report in connection with this question that the County
         Commissioners     Court of Harris County has refused to appropriate any
         money to the sheriff’s office for underwriting the department set up therein
         which had the duty of executing civil procesr.

                 You further ask our opinion as to whether it is the exclusive duty of
         the sheriff to execute civil process.   According to the information you have
         furnished us, the Commissioners      Court is contemplating that the courts of
         Harris  County will direct civil process to the constablee rather than to
         the sheriff.

                 Finally, our opinion is sought as to whether Harri.6 County would
         be liable for the sheriff’s failure to execute process where such failure
         was generated by a refusal to provide, by appropriation. sufficient funds
         for the employment of deputies to be used in executing civil process.

                 Article   6873.   V. T. C. S. , provides:

                           Each sheriff shall execute all process and precepts
                           directed to him by legal authority, and make return
                           thereof to the proper court, on or before the day to
                           which the same is returnable; and any sheriff who
                           shall fail so to do, or who shall make a false return
                           on any process or precept shall, for every such
                           offense, be liable to be fined by the court to which
                           such process is returnable, as for a contempt, not
                           exceeding one hundred dollars at the discretion of
                           the court, which fine shall go to the county treasury;
                           and such sheriff shall also be liable to the party
                           injured for all damages he may sustain.



                                                   p. 2648
The Honorable Joe Resweber     - Page 2    (H-595)



         A sheriff is therefore under a legal duty to execute process
directed to him by legal authority.    Article 6873, V. T. C. S., is absolute
in its terms and an inadequate operating budget will not excuse a sheriff’s
failure to execute process directed to him. Moreover, as provided by
article 6873, V. T. C. S., a sheriff’s failure to execute process is punish-
able by fine and subjects a defaulting sheriff to possible liability to a
party injured as a result of the failure to serve or execute the process.
Liability to a party injured by default in process execution is likewise
imposed by article 2287, V. T. C. S.

       However, the service and execution of the various types of civil
process are not the duty and function of the aheriff exclusively. Rule 15,
Texas Rules of Civil Procedure, provides in part:

               The style of all writs and process shall be ‘The
               State of Texas;’ and unless otherwise specially
               provided by law or these rules every such writ
               and process shall be directed to any.sheriff or
               an constable within
               bpplied).the             State Of Texas* * ’ ’

Other Rules of Civil Procedure indicate that either the sheriff or a
constable may execute the following legal process and writs: citations,
subpoenas. process issuing from the Supreme Court, attachments,
execution, garnishment, injunctions, sequestration, forcible entry and
detainer citations and writs of restitution, writs of partition and quo
warrant0 citations.  TEX. R. CIV. P. 15, 103, 177, 488, 594, 622, 686, 699,
742, 755, 762 and 780.

         Additionally, a number of Texas statutes provide that constables,
as well as sheriffs, may execute a particular form or kind of process.
See for example Election Code art. 7.11 (service of process under various
articles of the Election Code); V. T. C. S. , art. 2286a (lunacy, guardian-
ship and estate process); Prob. Code sec. 33 (citation in probate cases);
V. T. C. S., art. 2418 (jurors in justice court). Additionally, articles
4413 (11) and (12), V. T. C. S., clothe the Texas Rangers and the officers
of the Highway Patrol with the authority to execute process when
specially directed to do so by a court of r,ecord.

          There are few statutes that impose the duty of executing process
only upon the sheriff a’nd in such ire tances the sheriff would have the
exclusive authority and power to execute process.      See: for example
V.T.C.S.,     article 6874, (legislative process).




                                      p. 2649
The Honorable   Joe Resweber   - Page 3    (H-595)




        Accordingly, it is our opinion that a sheriff does not have the
exclusive duty to execute process except where a statute, rule or court
order so provides.

        Your final question is whether a county would be liable for the
failure to execute such process where the commissioners court has
failed to provide the sheriff with an adequate budget.

       Article 3902, V. T. C. S.,   which pertains to the appointment of
subordinates, provides in part:

                Whenever any district, county or precinct officer
                shall require the services of deputies, assistants
                or clerlw in the performance of his duties he shall
                apply to the County Commissioners’ Court of his
                county for authority to appoint such deputies, assistants.
                or clerks,   stating by sworn application the number
                needed, the position to be filled and the amount to
                be paid. Said application ehall be accompanied by
                a statement showing the probable receipts from ‘fees,
                commissions and compensation to be collected by said
                office during the fiscal year and the probable disburee-
                merits which shall include all salaries and expenses of
                said office; and said court shall make its order
                authorizing the appointment of such deputies, assistants
                and clerks and fix the compensation to be paid them
                within the limitations herein prescribed and determine
                the number to be appointed ai in the discretion of said
                court may be proper;. . . (Emphases supplied).

        It is clear that a commissioners   court has reasonable discretion
in the employment of staff for the sheriff’s office.   Compare, Attorney
General Opinion M-708 (1970). A commissioners        court has the authority
to adopt a budget “a.8 in its judgment the facts and the law warrant and the
interests of the taxpayers demand. ” V. T. C. S., article 1666a. There is
therefore no affirmative duty which could give rise to liability on the part
of the county for failure of a sheriff to execute process.

        Furthermore,    the doctrine of legislative immunity would protect
the members of the commissioners      court from any liability for asserted
budgetary deficiencies.    Torres v. Owens, 380 S. W. 2d 30 (Tex. Civ.
APP. -- Corpus Christi 1964. writ ref., n. r. e. ). We do not consider the
situation in which commissioners    might be found to have acted maliciously.




                                      p. 2650
,
    ,’      -




         The Honorable Joe Rerweber - Page 4      (H-595)



                                      SUMMARY

                        A sheriff has the statutory  duty to execute
                                            _.  . _
                      process  directed to him by legal authority.
                      Any failure to perform such duty could subject
                      the sheriff to a fine and / or possible damagen.

                         The sheriff &es not have the exclusive
                       authority to execute process.

                          The commissioners court would not be
                       liable for a sheriff’s failure to execute process.




         APPROVED:




         Opinion Committee

         jwb




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