        THE    ATTOWSE~-        GENERAL
                   OF  TEXAS

                    October19, 1987




Honorable Charles D. Houston          Opinion No. 5x-810
District Attorney
One East Main                         Re: Whether a constable
Bellville, Texas   77418              is authorized to execute
                                      civil process    outside
                                      his county and related
                                      questions

Dear Mr. Houston:

     You have submitted the following questions concerning
the duties of constables and deputy-constables to serve
civil process:

          1. Can 'a constable      or deputy    constable
       serve civil process:

              a. Issued in his       county and      served
          in another county?

              b. Issued in another county     . . .
          and served in another county . . .?

          2. Does all the money received by a
       constable,. paid deputy constable,     unpaid
       deputy constable   or reserve deputy     con-
       stable, have to be turned in to the county
       treasurer of his county, regardless of where
       the process originates or is executed?

          3. Can a deputy constable            act    as   a
       private process server?

We conclude that a constable or deputy constable may serve
civil process  in the county in which he is elected or
appointed or in a county contiguous to that county.      A
constable or deputy constable must deposit      all money
received for serving citation with the county treasurer of
his county regardless of where the citation originates or
is SSNSd.     A deputy constable    authorized   to serve
citation pursuant to Rule 106(b) of the Texas Rules of
Civil Procedure may not act as a private process server.



                         p. 3833
Honorable Charles D. Houston - Page 2    (JM-810)




     The first question is in two parts, both parts con-
cerning the authority of a constable or deputy constable
to serve civil process outside the county    in which he
holds office. Specifically,  the inquiry is directed  to        '
the authority conferred upon these officers by the Texas
Rules of Civil Procedure.

     Rule 103 of the Texas Rules of Civil           Procedure
provides the following in pertinent part:

          All process may be served by the sheriff
       or anv constable of anv countv in which the
       partv to be SSNSd  is found, or, if by mail,
       either of the county in which the case is
       pending or of the county in which the party
       to be served is found. . . .       (Emphasis
       added.)

The courts have held that for a valid service of civil
citation, the officer serving citation must be acting
,within the county  in which he is an officer.   Hisler v.
Channelview Bank, 538 S.W.Zd 200 (Tex. Civ. App. - Houston
 [14th Dist.]   1976, no writ), and     authorities  cited
therein.

     Section 86.021 of the Local Government  Code (effec-
tive September 1, 1987) sets forth the general powers and
duties' of the constable:

          (a) A constable shall execute and return
       as provided by law each process, warrant,
       and precept   that is    directed  to   the
       constable  and is delivered   by a lawful
       officer.

           (b) A constable may execute any civil or
       criminal orocess throushout the countv    in
       which the constable's nrecinct   is located
       and in other locations as orovided bv the
       Code of Criminal Procedure  or bv anv other
       &&I.

          (c) The constable       shall attend   each
       justice court     held     '
                                  in'  the  precinct.
       (Emphasis added.)

Acts 1987, 70th Leg., ch. 149, at 1579. The emphasized
provision was derived  from article 6889, V.T.C.S., which
was repealed  simultaneously   with the enactment' of the
Local Government Code. L     at 2547.



                        0. 3834
Honorable Charles D. Houston - Page 3        (JM-810)




     Article 6889, however, was amended by the 70th Legis-
lature to read as follows:

          (a) Every constable may execute       any
       process, civil or criminal, throughout   his
       county and elsewhere, as may be provided for
       in the Code of Criminal Procedure, or other
       law.

           (b) A constable expressly authorized   by
       statute to perform an act or         service,
       including the service of civil or criminal
       process,  citation,  notice, warrant,    sub-
       poena, or writ, may perform      the act or
       service anywhere in the county in which the
       constable's precinct is located.

           (c) Notwithstandino the Texas Rules of
       Civil Procedure.   all civil orocess may be
       served bv a constable in his countv or in a
       countv contisuous to his countv, exceot that
       a constable who is a uartv to or interested
       in the outcome of a suit mav not serve any
       process  related to the suit.       (Emphasis
       added.)

Acts 1987, 70th Leg., ch. 713, at 5179.   The amendment of
article  6889 became effective    on September   1, 1987,
despite the repeal and recodification   of the act during
the same legislative session:

           (c) The repeal of a statute by a code
       does not affect an amendment, revision   or
       reenactment  of the statute by the same
       legislature  that enacted the code.     The
       amendment,  revision,       reenactment  *
       preserved and given eff%    as part of tE
       code provision that revised the statute  so
       amended, revised or reenacted.

           (d) If any provision of a code conflicts
       with a statute enacted by the same legisla-
       ture that enacted the code, the statute
       controls.

Gov't Code 5311.031(c),    (d).     See Attorney General Opinion
JR-761 (1987).

     The amended version of          article 6889 .provides the
answer to the first question.        Accordingly, a constable or



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.   I




        Honorable Charles D. Houston - Page 4    (JM-810)




        deputy constable may serve civil process in the county in
        which he is elected or appointed or in a county contiguous
        to that county.1

             The second question is whether all money received by
        a constable or deputy constable for serving citation must
        be deposited with the county treasurer regardless of where
        the citation   originates or iS SeNSd.       The question  is
        prompted by a situation in which citation is to be served
        in a county other than the county        from which   it was
        issued. The citation is delivered by a private         person
        (usually the attorney    for the party procuring the cita-
        tion) to a constable or deputy constable       of the county
        in which service   is sought.     The constable    or deputy
        constable   is paid a fee for        serving the citation:
        apparently, the sum is not taxed and secured as a cost of
        court.  It is suggested that under these circumstances the
        constable or deputy constable may retain whatever      fee he
        receives from the private person     for the performance   of
        this service. We disagree.     It should be noted here that
        the duty of a constable to serve citations      is unaffected
        by the fact that the citation was delivered           to the
        constable by the attorney for the party procuring         the
        citation, rather than by a "lawful .officer." Medlin v.
        Seidemann, 88 S.W. 250 (Tex. Civ. App. 1905, no writ).

             Article XVI, section  61, of the Texas Constitution
        requires  the commissioners   court of every county to
        compensate constables and deputy constables  on a salary
        basis. See Vondv v. Commissioners Court of Uvalde Countv,
        620 S.W.2d 104, 108 (Tex. 1981). Section 61 also provides
        the following in pertinent part:



              1. Rule 103 of the Texas Rules of Civil Procedure,
        which suggests that a constable's   jurisdiction to serve
        process does not extend beyond the borders  of his county,
        was recently amended by the Texas Supreme Court to make it
        clear that sheriffs and constables may serve process
        outside their county.    The amended rule, which takes
        effect January 1, 1988, includes the following    relevant
        language:  "Citation and other notices may be served by
        (1) any sheriff or constable or other person authorized by
        law or, (2) by any person authorized by written   order of
        the court who is not less than eighteen years of age."
        Order of March   10, 1987, adopting   amendments to Texas
        Rules of Civil Procedure,- reprinted in The Texas Lawver,
        Aug. 3, 1987, at 16-17.




                                p. 3836
Honorable Charles D. Houston - Page 5    (JM-810)




          All fees earned by district, county and
       precinct officers shall be paid into the
       county treasury where earned for the account
       of the proper    fund, provided   that fees
       incurred by the State, county and        any
       municipality, or in case where a pauper's
       oath is filed, shall be paid into the county
       treasury when collected and provided    that
       where any officer is compensated wholly on a
       fee basis such fees may be retained by such
       officer or paid into the treasury    of the
       county as the     Commissioners  Court   may
       direct.

     Section 154.003 of the Local Government Code requires
district, county, and precinct officers who,are   paid on a
salary basis to charge and collect all fees for official
services and to dispose of the collected money as provided
by subchapter   B of chapter 113 of the code.       Section
113.021 requires all fees belonging to the county to be
deposited with the county treasurer in accordance with any
applicable procedures   prescribed by the county auditor
under either   section 112.001 or section   112.002 of the
code. Accordingly, all fees collected by a constable or
deputy.constable for the performance of an official duty
must be deposited with the county treasurer.

     We have been informed that a number of deputy
constables  engaged  in the practices     described  above
justify the retention of fees on the theory that since the
citation is delivered to the deputy by a person other than
the clerk of the court, the deputy is acting as a private
process server. Thus, you ask whether   a deputy constable
may act as a private process server.

     Rule 106 of the Texas Rules        of   Civil   Procedure
provides the following~in part:

           (a) Unless the citation or an order of
       the court otherwise directs, the citation
       shall be served by any officer authorized by
       Rule 103 by

                (1) delivering to the defendant, in
          person, a true copy of the citation with
          the date of delivery ,endorsed thereon
          with a copy of 'the petition     attached
          thereto. or




                        p. 3837
.   ,



        Honorable Charles D. Houston - Page 6   (JM-810)




                        (2) mailing   to the defendant   by
                  registered  or    certified  mail,   with
                  delivery restricted   to addressee  only,
                  return receipt requested, a true copy of
                  the citation with a copy of the petition
                  attached thereto.
        Rule 103 authorizes  service of citation by sheriffs,
        constables and, in limited circumstances,  clerks of the
        court. Rule 106 also provides the following:

                   (b) Upon 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 under either   (a)(l) or (a)(2) at
               the location named in such affidavit but has
               not been successful, the court may authorize
               service

                        (1) by an officer or by any dis-
                  interested adult named in the court's
                  order 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, or

                        (2) in any other manner   that the
                  affidavit or other evidence before the
                  court shows will be reasonably  effective
                  to give the defendant notice of the suit.

        The courts have construed these rules to require an
        officer authorized to serve process by Rule 103 to attempt
        service by one of the methods provided in Rule 106(a)(l)
        and (2) before the trial court may appoint       a private
        process server pursuant    to Rule 106(b). Lawver's   Civil
        Process, Inc. v. State ex rel. Vines, 690 S.W.2d 939 (Tex.
        APP. - Dallas 1985, no writ).    It is apparent, then, that
        a deputy constable serving a citation delivered   to him in
        the circumstances   described   above is not acting as a
        private process server. Furthermore, because we believe a
        deputy constable   appointed pursuant   to Rule 106(b) is
        under a legal duty to serve citation, he does not act as a
        l*privatel*process server.




                                p. 3838
Honorable Charles D. Houston - Page 7       (JM-810)




     Rule 106(b) permits  the trial court, upon a motion
and affidavit  stating the required   facts, to authorize
service "bv an officer or by any disinterested      adult
named in the court's order." Tex. R. Civ. Proc. 106(b)(l)
(emphasis added). Rule 105 emphatically states the duty
of the officer to whom process is.delivered:

       The officer to whom process    is delivered
       shall endorse thereon the day and hour on
       which he received it, and shall execute  and
       return the same without delay.     (Emphasis
       added.)

The courts characterize as mandatory the duty of sheriffs
and constables to serve all writs and processes presented.
to them. Garcia v. Gutierrez, 697 S.W.2d 758, 759 (Tex.
APP. - Corpus Christi    1985, no writ):   Lawyer's  Civil
Process,  Inc. v. State ex rel.       Vines,  suura.   See
oenerally Attorney General Opinion Nos. H-595 (1971); S-71
(1953). Accordingly, we conclude that a deputy constable
authorized to serve citation pursuant to Rule 106(b) does
not act as a private process server, but is under a,legal
duty to serve citation.

                       SUMMARY

            A constable  or deputy constable    may
       serve civil process in the county in which
       he is elected or appointed      or a county
       contiguous to that county. Acts 1987, 70th
       Leg., ch. 713, at 5179     (amending article
       6889, V.T.C.S.).   All money received by a
       constable or deputy constable    for serving
       citation must be deposited with the county
       treasurer of his county. A deputy constable
       authorized to serve citation pursuant     to
       Rule 106(b) of the Texas Rules of Civil
       Procedure does not act as a private process
       server, but is under a legal duty to serve
       citation.



                                    J             x&N
                                    Very truly yo

                                        A
                                    JIM     MATTOX         :
                                    Attorney General of Texas

MARY KELLER
Executive Assistant Attorney General



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Honorable Charles D. Houston - Page 8   (JM-810)




JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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