                          ATTORNEY GENERAL OF TEXAS
                                      GREG       ABBOTT




                                          October 82003



The Honorable Richard J. Miller                     Opinion No. GA-01 13
Bell County Attorney
P.O. Box 1127                                       Re: Whether a refusal to permit a constable to
Belton, Texas 765 13                                enter the restricted area of a business in order to
                                                    serve civil process constitutes an offense under
                                                    section 38.16 ofthe Penal Code (RQ-0056-GA)

Dear Mr. Miller:

        Youinquire about the proper construction of section 38.16 of the Penal Code. That statute
provides:

                        (a) A person commits an offense if he intentionally           or
                knowingly by words or physical action prevents the execution          of
                any process in a civil cause.

                        (b) It is an exception to the application of this section that
                the actor evaded service of process by avoiding detection.

                        (c) An offense under this section is a Class C misdemeanor.

TEX. PEN. CODE ANN. 8 38.16 (Vernon 2003).

        You ask that we consider the statute in light of the following fact scenario:

                [A] constable sought to serve civil process on X at the corporation
               where X was an employee. The constable contacted the business’s
               personnel director, who then went back into a restricted area of the
               business and advised X that the constable was there to serve him
               with the process. X declined to come out and accept the paperwork.
               When the personnel director advised the constable of this fact, he
               refused to allow the constable access into the company’s restricted
                area to attempt to personally serve X. The constable went to a
               justice of the peace and swore out a complaint against the personnel
                director for the Class C misdemeanor        offense of preventing
                execution of [civil] process under Penal Code Section 38.16 . . . .
 The Honorable      Richard J. Miller - Page 2             (GA-01 13)




                   Once this came to my attention, I was of the opinion that the
                   personnel director had not violated the statute, and the warrant was
                   subsequently pulled. *

 Your first question is whether the personnel director violated section 38.16(a) “by not allowing the
 constable to enter a business’s restricted area to personally serve civil process to an employee who
 the personnel director had made aware of theconstable’s presence and who refused to come out and
 accept service.” Request Letter, supra note 1, at 1. To the extent that the statute could be construed
 to apply to the fact situation you describe, such application would raise serious concerns under the
 Fourth Amendment to the United States Constitution.

          The Supreme Court of South Dakota considered a situation very similar to the one you
 describe here. In Gateway 2000, Inc. v. Limoges, 552 N.W.2d 591 (S.D. 1996), a sheriff regularly
 traveled to the Gateway facility to serve its employees with civil process. The sheriff would enter
 the public area of the Gateway facility and advise the company’s security staff of the names of
 individuals whom he sought to serve. After being notified and informed that the sheriffwas waiting
 at the visitor’s entrance to serve papers on them, the employees had the option of going to the
 visitor’s entrance to be served or remaining at their work station. Gateway’s policy was not to force
 its employees to accept service of civil matters; however, the sheriff in this case had started to
 demand “entry and access to the employee work stations at Gateway,” and had notified Gateway
 that any person who attempted to interfere or deny access to him or his deputies would be “arrested,
 charged and prosecuted for obstruction of justice.” Gateway, 552 N.W.2d at 592.

          The court observed that “[t]he Fourth Amendment to the United States Constitution protects
 the rights of people against unreasonable intrusions by the State,” id., and that “[tlhe United States
 Supreme Court has held [that] business premises are protected by the Fourth Amendment.” Id. at
 593 (citing G.M. Leasing Corp. v. United States, 429 U.S. 338,339 (1977)). Whether the Fourth
 Amendment applied to Gateway in this situation depended, first, on whether the company had
 exhibited, by its conduct, “an actual (subjective) expectation of privacy,” id. at 594, and second,
 whether society could see this as a “reasonable” expectation. Id. (quoting Katz v. United States, 389
 U.S. 347,361 (1967) (Douglas, J., & Brennan, J., concurring)). Gateway satisfied the first criterion
 because the company “maintains an internal security department and prohibits access beyond the
 visitor center to members of the public for security and safety reasons.” Id. Gateway complied with
 the second criterion because it, like other businesses, “has clearly-defined public areas[, and] the
 employee work area is private.” Id. “The United States Supreme Court held that entry for the
 purpose of checking for compliance with administrative regulations, without consent, upon the
 portions of commercial premises which are not open to the public requires a warrant.” Id. (citing
 See v. City of Seattle, 387 U.S. 541,545-46 (1967)).

            The court also pointed out that service of civil process differs from service of criminal
 process.     In a criminal case:



         ‘Letter from Honorable Richard J. Miller, Bell County Attorney, to Honorable Greg Abbott, Texas Attorney
General, at 1 (May 15, 2003) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable Richard J. Miller - Page 3              (GA-01 13)




                 A law enforcement officer is given the authority to require citizens
                 to aid him in making an arrest[,] . . . [and] may “break open an outer
                 or inner door or window of a dwelling house or other structure for
                 the purpose of making the arrest if, after giving reasonable notice of
                his intention, he is refused admittance,” and if the law enforcement
                 officer has an arrest warrant or exigent circumstances exist which
                justify warrantless arrest.

Id. (citing S.D. CODIFIEDLAWS 5 23A-3-5). But when the sheriff “is operating in the same capacity
as a private process server,” he “has no authority to threaten Gateway management or employees
with a charge of ‘obstruction ofjustice,“’ nor does he “have the authority to forcibly enter beyond
the visitor entrance.” Id. at 595. “The sheriff cannot force another citizen to do that which he
cannot do, that is, forcibly enter a private area to serve civil process. In this case, he cannot cause
Gateway management or security to force the employee being served to accept service of process.”
Id.

        The court found that “[t]he arrangement at Gateway is like the closed door [of a private
dwelling]. While the sheriff has access to the visitor center, the employee work area is like the
dwelling house. If Gateway chooses, it can open its interior employee work area to the public and
the sheriff, but once it ‘closes’ that area to the public, the sheriff may not use force or threats to
enter.” Id. at 596. The court concluded that both its state and the federal constitutions

                guard against those searches which are unreasonable . . . . [I]t is not
                reasonable [for the sheriff) to force his way into Gateway’s private
                work areas in order to serve an employee who chooses not to accept
                service of process. An employee can close the door to his home to
                avoid a process server. He may also avoid civil process in the
                private areas of the Gateway facility. As an employer, Gateway does
                not give up its constitutional rights to maintain a private work area
                merely because it has incorporated. To hold otherwise would violate
                Gateway’s right to privacy and freedom from unreasonable searches.

Id. at 597.

         The Gateway case, buttressed by ample United States Supreme Court precedent, is highly
persuasive. It is, in addition, supported by two recent attorney general opinions from our sister
states. In a 1999 opinion, the attorney general of Virginia, citing Gateway, said that “entering a
business area where there is a justifiable expectation of privacy in order to serve process would be
unreasonable under the Fourth Amendment.” Op. Va. Att’y Gen. No. 32 (1999) at 2. The attorney
general of Tennessee, also citing Gateway and GM. Leasing Corporation, reached the same
conclusion in 2001. See Op. Term. Att’y Gen. No. 01-l 49 (2001) at 1 (“ A private business may
refuse access to the private areas of its business property to a private process server or a sheriff who
is attempting to serve civil papers, but may not refuse access to areas open to the public.“).
The Honorable    Richard J. Miller - Page 4           (GA-01 13)




         When these principles are applied to the situation you pose, it is clear that, whatever the
legislature’s intent in enacting section 38.16(a) of the Penal Code, the statute may not, under the
Fourth Amendment, validly be applied to an individual who refuses to permit a constable to enter
the restricted area of a business for the purpose of serving process. We conclude that the personnel
director in the scenario you have described cannot be convicted of violating section 38.16(a) of the
Penal Code because, as applied to that situation, the statute contravenes the Fourth Amendment to
the United States Constitution.

         You also ask whether section 3 8.16 is “overly vague to the extent that it is not enforceable.”
Request Letter, supra note 1, at 2. The doctrine of void-for-vagueness,     as applied to the states, is
derived from the due process guarantees of the Fourteenth Amendment to the United States
Constitution:

                A vague statute offends due process in two ways. First, it fails to
                give fair notice of what conduct may be punished, forcing people to
                guess at the statute’s meaning and threatening to trap the innocent.
                Second, it invites arbitrary and discriminatory enforcement by failing
                to establish guidelines for those charged with enforcing the law,
                “allow[ing] policemen, prosecutors, and juries to pursue their
                personal predilections.”

                         To survive a vagueness challenge, a statute need not spell out
                with perfect precision what conduct it forbids. “Words inevitably
                contain germs of uncertainty.”      Due process is satisfied if the
                prohibition is “set out in terms that the ordinary person exercising
                ordinary common sense can sufficiently understand and comply
                with.”

Comm ‘nfor Lawyer Discipline v. Benton, 980 S.W.2d 425,437 (Tex. 1998) (citations omitted).
The courts of Texas have found that a regulation of the Liquor Control Board requiring licensed
private clubs to provide “regular food service” and “complete meals” was not unconstitutionally
vague, Texas Liquor Control Board v. Attic Club, Inc., 457 S.W.2d 41, 45 (Tex. 1970); that a
regulation of the State Board of Insurance, deeming a “pattern of action” as prima facie evidence
of the violation of the regulation was not vague, Nunley v. State Board of Insurance, 552 S.W.2d
624,630 (Tex. Civ. App.-Eastland      1977, writ ref d n.r.e.); that a statute under which a nurse was
disciplined for “unprofessional or dishonorable conduct which, in the opinion of the Board [of
Nurse Examiners] is likely to injure the public” was not vague, Murphy v. Rowland, 609 S.W.2d
292, 297 (Tex. Civ. App.-Corpus Christi 1980, writ ref d n.r.e.); and that ordinances or county
regulations forbidding the owning or operating of a sexually oriented business without a license
were not vague, Mayo v. State, 877 S.W.2d 385,389 (Tex. App.-Houston [ 1st Dist.] 1994, no pet.),
State v. Garcia, 823 S.W.2d 793, 799 (Tex. App.-San Antonio 1992, pet. ref d), Memet v. State,
642 S.W.2d 518’522-23 (Tex. App.-Houston           [ 14th Dist.] 1982, pet. ref d). Even in the criminal
context, “[a] provision need not . . . be cast in terms that are mathematically precise; it need only
The Honorable Richard J. Miller - Page 5            (GA-01 13)




give fair warning of the conduct prescribed,    in light of common understanding       and practices.”
Garcia, 823 S.W.2d at 798.

         It seems likely that an “‘ordinary person exercising ordinary common sense”’ will be able
to “‘sufficientlyunderstand    and comply”’ with section 38.16(a) of the Penal Code. See Benton, 980
S.W.2d at 437 (citation omitted). In State v. Oren, 647 A.2d 1009 (Vt. 1994)’ the Supreme Court
of Vermont considered a case in which a defendant was charged with “impeding a public officer”
who was attempting to serve civil process. Oren, 647 A.2d at 1011. The court described what
occurred as follows:

               Defendant drove up in a pickup truck and parked so as to block the
               deputy’s exit, and then ran toward the deputy’s car. Screaming
               obscenities, defendant accused the deputy of trespassing and
               demanded identification.   The deputy explained that she was there
               to serve process on defendant and her husband, and produced her
               badge and identification. Defendant tried to grab the badge, and told
               her husband to call the Northfield police. Defendant then went into
               her house. The deputy became fearful and tried to maneuver around
               defendant’s truck, but succeeded only in getting her car stuck in a
               snowbank. Defendant then reappeared, screamed accusations that
               the deputy had hit her truck, and pounded on the hood and
               windshield of the cruiser.

                        The police arrived one-half hour later and helped the deputy
               extricate the cruiser.    The deputy followed the police out the
               driveway, stopping before she reached the road. She placed the
               papers on the ground and announced that the Orens had been served.
               Defendant drove up from behind, ran to the cruiser, and as the
               deputy was driving through the gate, defendant pushed the gate,
               hitting the side of the cruiser. Defendant then jumped on the hood
               of the cruiser and refused to get down. The deputy slowly drove
               through the gate, and defendant slid off the hood.

Id. at 1010-l 1. The court rejected the defendant’s challenge to the statute on vagueness grounds,
finding that “a person of ordinary intelligence should have understood that such behavior interfered
with the officer’s discharge of her duty.” Id. at 1013.

         An “‘ordinary person exercising ordinary common sense,“’ see Benton, 980 S.W.2d at 437
(citation omitted), would clearly understand that the kind of behavior described in Oren also
constituted the offense of “prevent[ing] the execution of any process in a civil cause.” TEX. PEN.
CODE ANN. § 38.16(a) (Vernon 2003). As a result, we conclude that section 38.16(a) is not on its
face void for vagueness.
The Honorable Richard J. Miller - Page 6             (GA-01 13)




         Finally, we note that a civil process server need not enter the private area of a business in
order to effectively serve process. Rule 106 of the Texas Rules of Civil Procedure provides that
if a process server is unable to deliver a copy of the citation to a defendant in person or by mail, the
process server may

                [u]pon motion supported by affidavit stating the location of the
                defendant’s usual place of business or usual place of abode or other
                place where the defendant can probably be found and stating
                specifically the facts showing that service has been attempted [by
                personal service or by mail] at the location named in such affidavit
                but has not been successful, the court may authorize service (1) by
                leaving a true copy of the citation, with a copy of the petition
                attached, with anyone over sixteen years of age at the location
                specified in such affidavit . . . .

TEX. R. CIV. P. 106. In other words, if a process server determines that a defendant resides or works
at a particular location, he or she may seek the court’s authorization for citation under rule 106 and
then leave the citation with any person over sixteen years of age at the described location. Under
the facts you have described here, if the process server determines that an employee works at a
particular company, he may serve that employee under rule 106 by leaving the citation in the
custody of a person described in the rule.
The Honorable Richard J. Miller - Page 7            (GA-01 13)




                                        SUMMARY

                        A person does not “intentionally or knowingly by words or
                physical action” prevent “the execution of any process in a civil
                cause,” TEX. PEN. CODEANN. 9 38.16(a) (Vernon 2003)’ by refusing
                to permit a process server to enter an area of his workplace that his
                employer has designated as “private,” because in that context, section
                38.16 contravenes the Fourth Amendment to the United States
                Constitution.  Section 38.16 is not on its face void for vagueness.




 BARRY R. MCBEE
 First Assistant Attorney General

 DON R. WILLETT
 Deputy Attorney General for Legal Counsel

 NANCY S. FULLER
 Chair, Opinion Committee

 Rick Gilpin
 Assistant Attorney General, Opinion Committee
