                      The Attorney             General of Texas
                                        December     27,   1979
MARK WHITE
Attorney General


                   Honorable Joe Resweber                     Opinion No.   MW-117
                   County Attorney
                   1001Preston, Suite 634                     Re: Fee for service of a precept
                   PIousto&Texas 77002                        by law officer.

                   Dear Mr. Resweber:

                         You have requested our opinion concerning the fee to be charged for
                   the service of precepts in the county and district courts. You have furnished
                   us with the precept’forms used in the courts of Harris County.

                         Article 39334 V.T.C.S., amended by the last session of the legislature,
                   Acts 1979, 66th Leg., ch. 519, at 1103,provides for the fees to be received by
                   the sheriffs and constables.

                                 Section l.
                                 (a) Sheriffs and Constsbles shall receive’ the
                              following fees:
                                 For each person, corporation or legal entity, on
                              whom service of citation, subpoena, summons, E
                              process not otherwise provided for, is performed or
                              attempted and return made, including mileage, if any,
                              a fee of. . . $10.00

                                 For executing or attempting to execute each writ
                              of garnishment, injunction writ, distress warrant, writ
                              of attachnent, writ of sequestration, writ of
                              execution. order of sale. writ of execution and order
                              of sale, br writ not otherwise provided for, and
                              makingretvn thereon mcludmg mileage, tf any, a fee
                              of. . . $12.00

                   (Emphasisadded.

                        A precept is nowhere defined in Texas law although reference to the
                   same is made in the Rules of Civil Procedure. Rule 16 provides:

                              Every officer shall endorse on all process and
                              precepts coming to his hand the day and hour on




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Honorable Joe Resweber     -   Page Two        (Mw-117)



           which he received them,. the manner in which he executed them,
           and the time and-place the process was served as well as the
           distance actually travelled in serving such process, and shall sign
           the returns officially.

(Emphasisadded. The fifth edition of Black’s Law Dictionary defines a precept as an

           order, writ, warrant, or process. An order or direction, emanating
           from authority, to an officer or body of officers, commanding him
           or them to do some act within the scope of their powers An order
           in writing, sent out by a justice of the peace or other like officer,
           for the bringing of a person or record before htm. Precept is not to
           be confined to civil proceedings, and is not of a more restricted
           meaning than ‘process’. . .

Id. at 1059. See also Ackermann v. Berriman, 114N.Y.S. 937 (City Ct. of N.Y. 1909); 72
E3.S. at 477.

       We believe that the fee to be chalged for the service or execution of a precept
depends on the purpose and function of the order as reflected in thenbody of the document.
We therefore turn to the forms used in Harris County. One form, a “precept to serve,”
commands any constable or sheriff to serve a motion for contempt and directs the person
served to appear before court to show catue. Another form commands the peace officer
to serve the party “with accompanyhq certified copy of            .” A third form requires
service of a certified copy of a petition under the Uniform Reciprocal Enforcement of
Support Act and directs that party to appear and show cause in accordance with a
certifiid ccpy of the court order attached thereto. A similar form commands service of
Plaintiff’s Original Petition, tcgether with the &dge’s order thereon, and that the party
appear and show cause.

      It is our opinion that precept forms are “process not otherwise provided for” and the
fee to be received is ten dollars. They merely call for the service of a document on a
person and require no more effort than the service of a citation, summons, or subpoena
unlike the execution of the writs for which a twelve dollar fee is allowed. The execution
of all of the writs specified in article 3933a are governed by the rules relating to ancillary
proceebngs. Tex R. Civ. Proc 592 - 736. The execution of these writs requires greater
effort than the mere service of process. They generally call for prompt action by the
constable or sheriff requiring the seizure of property. The rules provide that the plaintiff
mist file a surety bond and they allow the defendant to replevy the property by likewise
posting a bond Sale by public auction may be conducted by the sheriff or constable when
so ordered. Therefore, it is our opinion that under the doctrine of “ejusdem generis” the
precepts described in this opinion lie in the category of “process not otherwise provided
fop and require a fee of ten ddlars

                                      SUMMARY

           The fee for service of a precept, as described, in county and
            district court is ten dollars.




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Honorable Joe Resweber    -   Page Three    (m-117)




                                            MARK     WHITE
                                            Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by David B. Brooks
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

C. Robert Heath, Chairman
David B. Brooks
Walter Davis
Bob Gammage
SusanGarrison
Rick Gilpin




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