Hon. I. Predeckl 

County Auditor 

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 request which 

reads, In part, as follows: 

"As you know, all County Officials must 

file their Annual Reports as required In Artlcle 3897, R.C.S., as amended. 

"Mr. Henry Felgle, Constable, Prec. #l, 

Galveston County, has executed his 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 that he 

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 cases where entry is given 

by law, or 72) shall make any such entry by 

force or (3) shall wllfully 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 

property were let to him, or to the person 

under whom he claims, after demand made in 
162 

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

writing for the oossesslon thereof by the 

person or Dersons entitled to such oossesf&on, such person shall be adjudged guilty 

of forcible entry and detalner, or of forcible detainer, as the case may be. Any 

justice of the peace of the precinct where 

the property Is situated shall have juris- 

;i;,":o+ of any case arising under this 

. (Emphasis added) 

Art. 3975. 

"A person shal.1 be adjudged guilty of 

forcible detalner 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 Civil Appeals are not entitled to receive extra compensation for services performed within the 

scope of their official duties prescribed by 

law. The general principle prohibiting public officials from charging fees for the performance of their official duties does not 

prohlblt them from charging for their services for acts that they @e under no obllgatlon, under the law, to perform . . . 

"There being no statutory duty requlrlng petitioners to furnish uncertified, unofficial. copies of opinions of the Courts of 

Civil Appeals, no statute fixing any fee for 

such services, and no valid statute requlring that money received therefor be deposlted In the State Treasury, there 1s no debt 

owing by petitioners to the State. Since 

petitioners are not required to account to 

the State Treasurer, under the existing 

statutes, for such, receipts, they cannot be 

required to execute an affidavit that such 
Hon. I.. Predeckl, page 3 (V-733) 

funds have been deposited in the State Treasury as a condition for $he delivery of their 

monthly salary warrants. 

It will be noted that the aa'ove statutory provisions do not make It an official function of the Constable to serve the notice required by Art. 3973, V. C. 

S nor are we able to find any such statlifte. 

ln'the case of Moore v. Sheppard, 

As stated 

supra, the general 

principle prohlbfting public officials from charging 

fees for the performance of their official duties, 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 statutory prohibition, the Constable of your county may retain the 

money which he may receive for serving written 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 Constable who receives money for 

serving written ,notice in 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