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 manyexeoutiow 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 1oaths, aa provided by the Rules of Civil Procedure. The Sheriff has, without aucceaa, requested that the Statutory fees be paid in advance. I amadvlaed 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 Fundand not to the Sheriff personally. The parties who have requested these aervioes of the Sheriff ’s Department andwhohave failed to pay the fees in advanae are nowthreatening to sue the Sheriff andhis 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 sameqwation.

“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 orBon. A. C. Wlnborn, page 2 (V-1002)

pauper’s oaths?” Weagree with oonclualon you have reached in the able brief acoompa lng your request.

Article 3933, 

### v.d.~., provides the following fees in part:

“Sheriffs andconstables shall reoelve the following fees : Levying each execution,

......... 1.00 Return of execution,

............ t1.00.” 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 demandhis fee for executing the same In advance of suoh execution, but his fee shall be taxed andcollected as other costs In the case.” Rule 126 of the Texas Rulea of Civil Procedure Is aa follows:

“Noaherlff 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, 

### unlessthefeesallowed hLmby 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 nameoffloially below them; and the officer In whose handa auoh process la placed for service shall serve the same.” By 1+)aaonof the firat portion of Rule 126 it is evident that the offloer executing process in clvll oaaea coming from another ootiuty mayrequire Us fees in advance for the servioe of process. It la our opinion that the last portion of the 

### flratsentence of said Rule which atatea, ‘except whenaffldavlt 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 andhis 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 

### otherthan the one In which he la an officer. SUMMARY Asheriff or box&able maynot 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, PRICEDANIEL Attorney General

Burnell Waldrep Assistant