L 

E .L’%TTOMNEY GENERAL 

OF TEXAS 

Febliuary 17, 1950 

Hon. A. 0. Winborn Opinion No. V-1002. 

.Diatriot Attorney 

Houston, Texas Re: The authority of the 

Sheriff to refuse to 

levy out-of-county 

executions whioh are 

not aclcompenled by 

the statutory fees 

Dear Sir: or pauper’s oaths. 

Your requeat for an opinion relating to fees 

for exeoution of ppooeaa la substantially as followe: 

‘The Civil Department of the Sheriff’s 

Offioe of Harris County has reoeived, and 

ia still reoeivlng many exeoutiow in olv11 cases from oountiea other than Harris 

County requesting thatthe Sheriff levy and 

return said exeoutlone. They are not aocompanied by any fees, 88 provided by Statute, 

or paupers 1 oaths, aa provided by the Rules 

of Civil Procedure. The Sheriff has, without 

aucceaa, requested that the Statutory fees be 

paid in advance. I am advlaed that the County Auditor has emphatioally stated that unless these fees are oolleoted he will hold 

the Sheriff personally responeible for them; 

the fees going to the General Fund and not 

to the Sheriff personally. The parties who 

have requested these aervioes of the Sheriff’s Department and who have failed to pay 

the fees in advanae are now threatening to 

sue the Sheriff and his bondsmen for failure to exeoute and return these executions. 

“I am reliably Informed that sheriffs 

of other oountlea throughout the State are 

oonfronted with the same qwation. 

“QUESTION : Is the Sheriff legally juetlfled In refueing to levy end re%urn these 

out-of-aounty exeoutiona where they are not 

accompanied with the Statutory fees or 
Bon. A. C. Wlnborn, page 2 (V-1002) 

pauper’s oaths?” 

We agree with oonclualon you have reached 

in the able brief acoompa lng your request. 

Article 3933, v.d.~., provides the following 

fees in part: 

“Sheriffs and constables shall reoelve 

the following fees : 

Levying each execution, . . . . . . . . . 1.00 

Return of execution, . . . . . . . . . . . . t 1.00.” 

Rule 17 of the Texas Rulea of Civil Proaedura 

1s aa follows : 

“Except where otherwlae expressly provlded by law or these rules, the offloer 

recelting any process to be executed shall 

not be entitled in any oaae to demand his 

fee for executing the same In advance of 

suoh execution, but his fee shall be taxed 

and collected as other costs In the case.” 

Rule 126 of the Texas Rulea of Civil Procedure 

Is aa follows: 

“No aherlff or constable ahall be compelled to execute any process In civil casea 

aomlng from any county other than the one In 

which h8 is an officer, unless the fees allowed hLm by law for the service of such process 

shall be paid In advanoe; exoept when afirdavit la filed, as provided by law or these 

rules. The clerk Issuing the prooess ahall 

lndorse thereon the words, ‘pauper oath flled, I and sign his name offloially below them; 

and the officer In whose handa auoh process 

la placed for service shall serve the same.” 

By 1+)aaon of the firat portion of Rule 126 it 

is evident that the offloer executing process in clvll 

oaaea coming from another ootiuty may require Us fees in 

advance for the servioe of process. It la our opinion 

that the last portion of the flrat sentence of said Rule 

which atatea, ‘except when affldavlt la filed, as provlded by law or these rules” has refer8nce to the affldavlt 
_ . 

Bon. A. C. Wlnborn, page 3 (V-1002) 

filed wherein the inability to pay ooata Is brought to 

the attention of the Court. This being true the clerk 

merely lndorses on the process the worda "pauper oath 

filed." 

Rule 145 of the Texas Rules of Civil Procedure 

la the Rule authorizing a party to execute an affidavit 

that he la too poop to pay the costs of court and his 

lnablllty to give aeourlty therefor. 

By raason of the foregoing and particularly 

the olear Import of Rule 126, It la the opinion of this 

office that a sheriff or constable may require fees In 

advance or the execution of a pauper's oath for the service of process coming from any oounty other than the 

one In which he la an officer. 

SUMMARY 

A sheriff or box&able may not be compelled to execute prooeas In civil cases 

coming from any county other than the one 

in which he la an officer unless the fees 

allowed by lew for such service of process 

are paid In advenae or a pauper's oath Is 

filed in lieu thereof. 

APPROVRD: 

J. C. Davis, Jr. 

County Affairs Division 

Charles D. Mathews 

Executive Assistant 

BW:bh:mw 

Yours very truly, 

PRICE DANIEL 

Attorney General 

Burnell Waldrep 

Assistant