DAN MORALES 

ATTORNfY GENERAL 

QBffice of tiy !Zlttornep Qhneral 

mite of aexae 

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 &om control of the 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 “shall exercise such powers and jurisdiction over all county business, as is wnferred 

by this wnstitution and the laws of the 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 is wntained in section 81.022(a) of the 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 its jurisdiction. A notice, citation, 

writ, or process must: 

(1) be in the name of the “State of Texas”; 

(2) be directed to the sher$for a constable of a counq, 

p. 1428 
Honorable Charles S. Bra& - Page 2 (DM-273) 

(3) be dated and signed officially by the clerk; and 

(4) be impressed with the court seal. 

LaxI Oov’t Code 3 81.022(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 fees for “services by the offices of the sheriff and constables.” 

However, there is no 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 

him by 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 

is not 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 of Civil Procedure as well as other state statutes indicate 

that a sheriff or a constable may serve process. Additionally the Texas Bangers and 

officers of the highway patrol sre vested with such authority when directed to do so by a 

wurt of record. Id. 

Thus we conclude that the court does not have the express or implied statutory 

authority to establish a civil process department. Furthermore, a wmmissioners 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 

civil process. 

DAN MORALES 

Attorney General of Texas 

‘TIE aheriffducs not have cxciusive authority to axeutc pmcas. Id. 

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

WILL PRYOR 

Fii Assistant Attorney Oeneral 

MARYKELLER 

Deputy Attorney General for Litigation 

RENEAHICKS 

State Solicitor 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by Toya C. Cook 

Assistant Attorney General