DAN MORALES

ATTORNfY GENERAL 

## QBffice of tiy !Zlttornep Qhneral mite ofaexae December 10,1993 Honorable Charles S.Brack county Attorney chambers county P.O. Box 1200 Anahuac, Texas 77514 Opiion No. DM-273 Re: whethet the chambers colmty commissiollela coult has the authority to createacivilprocessdepartment,separateand apart &omcontrol ofthe sheriff (RQ-SOS) Dear Mr. Bra&: You advise that in July of 1992, the chambers County commlssl * ‘oners Court created a “Cii Process office.” You suggest that this office performs all of the duties that the sheriffs office performed regarding civil process before the office was created, except the actual service of process, which is performed by the sheriff his deputies, various wnstables and their deputies. The employee who occupies the 05ce of civil process is also a deputy wnstable, who sometimes serves the papers she processes. You ask whether the court has the authority to create a civil process department that is independent of the control of the sheriff. We conclude that the wurt is lacking in such WhOlit)? Article V, section 18 of the Texas Constitution provides that the wmmissioners court “shallexercise such powers andjurisdiction over all county business, as is wnferred by this wnstitution and the laws ofthe State

.. . .” Tex. Const. art. V, 5 118; Cixmles v. Laugblh, 214 S.W.2d 451,453 (Tar. 1948);Attorney General Opiion JM-449 (1986) at 1. The court may exercise only such powers as the Texas Consthution and statutes expressly grant, together with such other implied powers as are reasonably newssary to carry out its express duties. schope v.Stare, 647 S.W.2d 675,678 (Tex. App.-Houston [14th Dist.] 1982, writ refd); see Anderson v. Fpd, 152 S.W.Zd 1084, 1085 (Tex. 1941). With regard to civil process, the wmnnssr ’ ‘oners court is vested with two duties. The tint iswntained in section 81.022(a) ofthe Local Government Code, which provides:

The wmmissioners court shah issue the notices, citations, writs, and process necessary for the proper execution of its powers and duties and the enforcement of itsjurisdiction. A notice, citation, writ, orprocess must: (1) beinthe name ofthe “State ofTexas”; (2) bedirected to thesher$for a constable ofa counq,

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(3) bedated and signed officiallyby the clerk; and (4) beimpressed with the court seal. LaxI Oov’t Code 381.022(a) (emphasis added). The second is found in section 118.131(a) of the code which vests the wmmissioners court with the authority to designate reasonable feesfor “servicesbythe offices ofthe sheriffand constables.” However, there isno statutory authority, express or implied, for a wmmissioners court to establish a civil process department or to alter the manner in which process is accomplished. Bather, the sheriff has a statutory duty to execute processes directed to himby legal authority. Id. 85021(a). Furthermore, any failure to perform this duty wuld subject the sheriff to a tine or possible damages. Id. 8 85021@)(c); Attorney General Opiion H-595 (1975) (and authorities cited therein).r We also note that while the sherilf isnot vested with the exclusive authority to serve process, the court is not authorized to participate in the execution of process but only to issue it in certain very lhnited circumstances. The Texas Rules ofCivilProcedure aswell as other state statutes indicate that a sheriff or a constable may serve process. Additionally the Texas Bangers and officers ofthe highway patrol sre vested with such authority when directed to do so by a wurt ofrecord. Id. Thus we conclude that the court does not have the express or implied statutory authority to establish acivilprocess department. Furthermore, awmmissioners court may not interfere with or usurp the duties and performance of independent county officials. See P&chord&Abbott v.McKenno, 350 S.W.Zd 333, 335 (Tex. 1961). See generally White v. Ptckett, 355 S.W.Zd 848, 849 (Tex. Civ. App.-San Antonio 1962, writ refd n.r.e.). 

### SUMMARY

The Commissioners Court of Chambers County does not have the express or implied statutory authority to establish an ofike of civilprocess.

DAN MORALES Attorney General ofTexas

‘TIE aheriffducs

nothavecxciusiveauthority toaxeutc pmcas. Id.

p. 1429Honorable Charles S.Brack - Page 3 W-273)

WILL PRYOR Fii Assistant Attorney Oeneral MARYKELLER Deputy Attorney General forLitigation RENEAHICKS State Solicitor MADELEINE B. JOHNSON Chair, Opiion Committee Prepared byToya C.Cook Assistant Attorney General