                             QBffice of tiy !Zlttornep Qhneral
                                       mite of aexae
DAN MORALES
 ATTORNfY
       GENERAL                            December 10,1993

     Honorable Charles S. Brack                     Opiion No. DM-273
     county Attorney
     chambers county                                Re: whethet         the    chambers       colmty
     P.O. Box 1200                                  commissiollela coult has the authority to
     Anahuac, Texas 77514                           createacivilprocessdepartment,separateand
                                                    apart &om control of the sheriff (RQ-SOS)

     Dear Mr. Bra&:

             You advise that in July of 1992, the chambers County commlssl      * ‘oners Court
     created a “Cii Process office.” You suggest that this office performs all of the duties
     that the sheriffs office performed regarding civil process before the office was created,
     except the actual service of process, which is performed by the sheriff his deputies,
     various wnstables and their deputies. The employee who occupies the 05ce of civil
     process is also a deputy wnstable, who sometimes serves the papers she processes. You
     ask whether the court has the authority to create a civil process department that is
     independent of the control of the sheriff. We conclude that the wurt is lacking in such
      WhOlit)?


             Article V, section 18 of the Texas Constitution provides that the wmmissioners
     court “shall exercise such powers and jurisdiction over all county business, as is wnferred
     by this wnstitution and the laws of the State . . . .” Tex. Const. art. V, 5 118; Cixmles v.
     Laugblh, 214 S.W.2d 451,453 (Tar. 1948); Attorney General Opiion JM-449 (1986) at
     1. The court may exercise only such powers as the Texas Consthution and statutes
     expressly grant, together with such other implied powers as are reasonably newssary to
     carry out its express duties. schope v. Stare, 647 S.W.2d 675,678 (Tex. App.-Houston
     [14th Dist.] 1982, writ refd); see Anderson v. Fpd, 152 S.W.Zd 1084, 1085 (Tex.
     1941).

              With regard to civil process, the wmnnssr’ ‘oners court is vested with two duties.
      The tint is wntained in section 81.022(a) of the Local Government Code, which provides:
                      The wmmissioners court shah issue the notices, citations, writs,
                 and process necessary for the proper execution of its powers and
                 duties and the enforcement of its jurisdiction. A notice, citation,
                 writ, or process must:
                     (1) be in the name of the “State of Texas”;

                     (2)   be directed to the sher$for a constable of a counq,



                                               p.    1428
Honorable Charles S. Bra& - Page 2        (DM-273)




               (3) be dated and signed officially by the clerk; and

               (4) be impressed with the court seal.

LaxI Oov’t Code 3 81.022(a) (emphasis added). The second is found in section
118.131(a) of the code which vests the wmmissioners court with the authority to
designate reasonable fees for “services by the offices of the sheriff and constables.”

        However, there is no statutory authority, express or implied, for a wmmissioners
court to establish a civil process department or to alter the manner in which process is
accomplished. Bather, the sheriff has a statutory duty to execute processes directed to
him by legal authority. Id. 85021(a). Furthermore, any failure to perform this duty wuld
subject the sheriff to a tine or possible damages. Id. 8 85021@)(c); Attorney General
Opiion H-595 (1975) (and authorities cited therein).r We also note that while the sherilf
is not vested with the exclusive authority to serve process, the court is not authorized to
participate in the execution of process but only to issue it in certain very lhnited
circumstances. The Texas Rules of Civil Procedure as well as other state statutes indicate
that a sheriff or a constable may serve process. Additionally the Texas Bangers and
officers of the highway patrol sre vested with such authority when directed to do so by a
wurt of record. Id.

         Thus we conclude that the court does not have the express or implied statutory
authority to establish a civil process department. Furthermore, a wmmissioners court may
not interfere with or usurp the duties and performance of independent county officials.
See P&chord&Abbott         v. McKenno, 350 S.W.Zd 333, 335 (Tex. 1961). See generally
White v. Ptckett, 355 S.W.Zd 848, 849 (Tex. Civ. App.-San Antonio 1962, writ refd
n.r.e.).

                                   SUMMARY
                The Commissioners Court of Chambers County does not have
          the express or implied statutory authority to establish an ofike of
          civil process.




                                                       DAN      MORALES
                                                       Attorney General of Texas



       ‘TIE aheriffducsnot have cxciusiveauthorityto axeutc pmcas. Id.




                                          p.   1429
Honorable Charles S. Brack - Page 3      W-273)




WILL PRYOR
Fii Assistant Attorney Oeneral

MARYKELLER
Deputy Attorney General for Litigation

RENEAHICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by Toya C. Cook
Assistant Attorney General
