Hon. I. Predeckl

CountyAuditor Galveston County Galveston, Texas Opinion No. V-733
Re: The disposition to be made of the fees of R c0nstabl.e

for serving the first notice In eviction ectlons.
Dear Sir: Reference 1s made to your recent requestwhich reads, In part, as follows:

"Asyou know, all County Officialsmust file theirAnnual Reports as required In Artlcle 3897, R.C.S., as amended. "Mr.Henry Felgle, Constable, Prec. #l, Galveston County,has executedhis report. He did not account for fees that are paid, but to the best of my knowledge, are not stipulated in the Statutes, for serving the first notice in evictions.

. . "Mr.Felgle takes the position thathe does not have to account for the fees that he receives for the notices served referred to."We assume that-,the Constable gave the notice under Article 3973 and Section 1 of Art. 3975, V. C. S., which provide as follows:

"If any person (1) shall make an entry Into any lands, tenements or other real property, exce t in caseswhere entry **is** given by law, or 72) shallmake any such entryby force or (3) shallwllfully and without force hold over any lands, tenements or other real property after the termination of the time for which such lands, tenements or other real propertywere let to him, or to the person under whom he claims, after demandmade in

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Hon. I. Predecki,page 2 (v-733)

writing for the oossesslon thereofby the person or Dersons entitled to such oossesf&on, such person shallbe adjudgedguilty of forcible entry and detalner, or of forcibledetainer, as the casemay be. Any justice of the peace of the precinctwhere the property Is situated shallhave juris- ;i;,":o+

of any case arising under this

. (Emphasisadded)
Art. 3975. "Aperson shal.1

be adjudgedguilty of forcibledetalner also In the following cases: "1. Where a tenant at will or by sufferance refuses, after demand made In wrltlng as aforesaid, to glve possession to the landlzrd after the termination of his will.

. . ., In passing upon a similar question In the case of Moore v. Sheppard, 144 Tex. 537, 192 S.w.(2d) 559, the Supreme Court stated:

"The Clerks of the Courts of CivilAppeals are not entitled to receive extra compensation for servicesperformedwithin the scope of their official duties prescribedby law. The general principleprohibitingpublic officials from charging fees for the performance of their officialduties does not prohlblt them from charging for their services for acts that they@e under no obllgatlon, under the law, to perform
. . . "Therebeing no statutoryduty requlrlng petitionersto furnish uncertified, unofficial.

copies of opinions of the Courts of CivilAppeals,no statute fixing any fee for such services, and no valid statute requlring thatmoney received therefor be deposlted In the State Treasury, there 1s no debt owingby petitioners to the State. Since petitioners are not required to account to the State Treasurer,under the existing statutes,for such, receipts, they cannotbe required to execute an affidavit that suchHon. I.. Predeckl,page 3 (V-733)

funds have been deposited in the State Treasury as a condition for $he delivery of their monthly salarywarrants. It will be noted that the aa'ovestatutoryprovisions do not make It an official function of the Constable to serve the notice requiredby Art. 3973, V. C. S nor are we able to find any such statlifte. ln'the case ofMoore v. Sheppard, As stated supra, the general principleprohlbfting public officials from charging fees for the performance of their officialduties, does not prohibit them from charging for their services for acts that ttey are under no obligation,under the law, to perform. Therefore, in the absence of statutoryprohibition, the Constable of your countymay retain the money which he may receive for servingwritten notice in eviction cases, since there is no authority to the effect that such money is a fee of office for which he iS accountable. SUMMARY

A Constablewho receivesmoney for servingwritten ,noticein evic,tion cases is not required to nrrnnnt for same. Moore v. Sheppard, 144 Tex. 537, 192 S.w.(2d) 559. Yours very truly, ATTORNEY GENERAL OF TEXAS

BA:bh:mw 

# By

/4&cc~./*-~ J

Bruce Allen Assistant

APPROVED:

ASSISTANT ORNEYGWWAL