# The Attorney General of Texas December 27, 1979 MARK WHITE Attorney General HonorableJoe Resweber CountyAttorney 1001 Preston, Suite 634 PIousto&

Texas 77002 Dear Mr. Resweber: OpinionNo. MW-117 Re: Fee for service of a precept by law officer.

You have requested our opinion concerning the fee to be charged for the service of precepts in the county and district courts. You have furnished us with the precept’forms usedin the courts of HarrisCounty. Article 39334 V.T.C.S., amendedby the last sessionof the legislature, Acts 1979,66th Leg., ch. 519,at 1103, provides for the fees to be received by the sheriffs andconstables.

Section l. (a) Sheriffs and Constsbles shall receive’ the following fees: For each person, corporation or legal entity, on whom service of citation, subpoena, summons, E process not otherwise provided for, is performed or attempted andreturn made, includingmileage, if any, a fee of.

. . $10.00 For executing or attempting to execute each writ of garnishment,injunction writ, distresswarrant,writ of attachnent, writ of sequestration, writ of execution. order of sale. writ of execution and order of sale, br writ not otherwise provided for, and making retvn thereon mcludmgmileage, tf any, a fee of.

. . $12.00 (Emphasisadded. A precept is nowhere defined in Texas law although reference to the same is madein the Rules of Civil Procedure. Rule 16provides:

Every officer shall endorse on all process and precepts coming to his hand the day and hour on

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which he received them the manner in which he executed them,
,. and the time and-place the process was served as well as the distance actually travelled in serving such process, and shall sign the returnsofficially. (Emphasisadded. The fifth edition of Black’s LawDictionary defines a precept as an

order, writ, warrant,or process. An order or direction, emanating from authority, to an officer or body of officers, commandinghim or them to do some act within the scope of their powers An order in writing, sent out by ajustice of the peace or other like officer, for the bringingof a person or record before htm. Precept is not to be confined to civil proceedings, and is not of a more restricted meaningthan ‘process’

. . . Id. at 1059. See also Ackermann v. Berriman, 114 N.Y.S. 937 (City Ct. of N.Y. 1909);72 E3.S. at 477. We believe that the fee to be chalged for the service or execution of a precept dependson thepurposeand function of the order as reflected in then body of the document. We therefore turn to the forms used in Harris County. One form, a “precept to serve,” commandsanyconstable or sheriff to serve a motion for contempt and directs the person served to appearbefore court to show catue. Another form commandsthe peace officer to serve the party “with accompanyhq certified copy of

.” A third form requires service of a certified copy of a petition under the Uniform Reciprocal Enforcement of Support Act and directs that party to appear and show cause in accordance with a certifiid ccpy of the court order attached thereto. A similar form commands service of Plaintiff ’s Original Petition, tcgether with the &dge’s order thereon, and that the party appear andshowcause. It is our opinion that precept forms are “process not otherwise providedfor” andthe fee to be received is ten dollars. They merely call for the service of a document on a person and require no more effort than the service of a citation, summons, or subpoena unlike the execution of the writs for which a twelve dollar fee is allowed. The execution of all of the writs specified in article 3933a are governed by the rules relatingto ancillary proceebngs. Tex R. Civ. Proc 592- 736. The execution of these writs requires greater effort than the mere service of process. They generally call for prompt action by the constable or sheriff requiringthe seizure of property. The rulesprovide that the plaintiff mist file a surety bond and they allow the defendant to replevy the property by likewise posting a bond Sale by public auction may be conducted by the sheriff or constable when so ordered. Therefore, it is our opinion that under the doctrine of “ejusdem generis” the precepts described in this opinion lie in the category of “process not otherwise provided fop andrequire a fee of ten ddlars SUMMARY

The fee for service of a precept, as described, in county and district court is ten dollars.

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MARK WHITE Attorney Generalof Texas JOHNW. FAINTER,JR. First AssistantAttorney General TED L. HARTLEY Executive Assistant Attorney General Prepared by DavidB. Brooks AssistantAttorney General APPROVED: OPINION

COMMITTEE C. Robert Heath, Chairman DavidB. Brooks WalterDavis Bob Gammage SusanGarrison Rick Gilpin

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