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                                              The Attorney             General of Texas
                                                                                                       ,_-_-_   .-----\
                                                                                       Y---~’    -I-
                                                                  July 29, 1983
                                                                                       ;        .ys52fJ
    JIM MATTOX
    Attorney General
                                                                                       I

                                             Honorable Mike Driscoll                 Opinion No. JM-51
    Supreme   Court Building
    P. 0. Box 12546
                                             Harris County Attorney
    Austin, TX. 76711. 2546                  1001 Preston, Suite 634                 Re: Whether a constable may
    512/475.2501                             Houston, Texas   77002                  charge the Industrial Accident
    Telex    9101674-1367                                                            Board fees for serving sub-
    Telecopier     51214750266                                                       poenas issued in connection
                                                                                     with administrative hearings
    1607 Main St., Suite 1400
    Dallas, TX. 75201.4709                   Dear Mr. Driscoll:
    2141742-6944
                                                  You have requested our opinion as to whether a constable may
    4624 Alberta       Ave., Suite     160
                                             "charge the Industrial Accident Board fees for serving subpoenas
    El Paso. TX.       79905.2793            issued by the board in connection with its administrative hearings."
    9151533.3464
                                                  The board or any member is authorized to subpoena witnesses,
                                             article 8307, section 4, V.T.C.S., and constables are empowered to
      .20 Dallas Ave., Suite 202
    Houston,    TX. 77002-6966
                                             "execute and return. . . all process, warrants and precepts" directed
    7131650.0666                             to them "by any lawful officer," article 6885, V.T.C.S.

                                                  In Attorney General Opinion MN-209 (1980). this office held that
    606 Broadway.          Suite 312         sheriffs and constables are not entitled to receive fees from the
    Lubbock,  TX.        79401.3479
                                             Industrial Accident Board for serving subpoenas issued by the board.
    606/747-5236
                                             That opinion was based on article 3933a. V.T.C.S., which established a
                                             fee schedule for sheriffs and constables and provided, in pertinent
     4309 N. Tenth. Suite B                  part:
     McAllen,     TX. 76501-1665
     512l662.4547
                                                       For each person, corporation or legal entity on
                                                       whom service of citation, subpoena, summons, or
     200 Main Plaza. Suite 400                         process not otherwise provided for, is performed
     San Antonio,  TX. 76205-2797                      or attempted and return made, including mileage,
     5121225-4191                                      if any, a fee of:

     An Equal       OpportunityI                           (a) Small Claims Courts         $ 5.00
     Affirmative      Action     Employer                  (b) Justice Courts                8.00
                                                           (c) All other Courts             10.00

                                             The opinion reasoned that, since it had been consistently held that an
                                             administrative agency is not a "court," and since statutes are
                                             strictly construed against allowing a fee by implication, a sheriff or
                                             constable was not entitled to a fee for serving subpoenas issued by
                                             the board.




                                                                         p. 216
      Honorable Mike Driscoll - Page 2     (JM-51)




           Article 3933a was repealed in 1981. Acts 1981, 67th Leg., ch.
      379, at 1001, §2(b). Article 3926a, V.T.C.S., now provides:

                    (a) The commissioners court of each county may
               ,set reasonable fees to be charged by the offices
                of sheriffs and constables.
             ..~.
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                    (b) A commissioners court may not set fees
               higher than is necessary to pay the expenses of
               providing the services.

      In view of the repeal of article 3933a and the enactment of article
      3926a to allow a commissioners court to set "reasonable fees. . . for
      services by the offices of sheriffs and constables," we must conclude
      that a Harris County constable is      now entitled to charge the
      Industrial Accident Board fees for serving subpoenas issued by the
      board, provided the commissioners court of Harris County so
      authorizes. Attorney General Opinion MN-209 is overruled to the
      extent of conflict.

                                     SUMMARY

                  Pursuant to article 3926a, V.T.C.S.. and the
               repeal of article 3933a. V.T.C.S., a Harris County
               constable is entitled to charge the Industrial
               Accident Board fees for serving subpoenas issued
               by the board, provided the commissioners court of
               Harris County so authorizes.




                                               JIM     MATTOX
                                               Attorney General of Texas

      TOM GREEN
      First Assistant Attorney General

      DAVID R. RICHARDS
      Executive Assistant Attorney General

      Prepared by Rick Gilpin
      Assistant Attorney General

      APPROVED:
      OPINION COMMITTEE

      Rick Gilpin, Acting Chairman
      Jon Bible
      David Brooks
      Colin Carl
      Jim Moellinger

                                         p. 217
