### ATTORNEY 

### GENERAL OFTEXAS

The Honorable Will Hartnett Chair, Committee on the Judiciary Texas House ofRepresentatives Post Office Box 29 10 Austin, Texas 78768-29 10 GREG ABBOTT

October 3,2005

Opinion No. GA-0364
Re: Whether constables may receive, in addition to their salaries, fees for delivering notices required by Property Code section 24.005 (RQ-0337-GA)
Dear Representative Hartnett:
Section 154.005(d) of the Local Government Code provides that aconstable may receive, in addition to his or her salary, “all fees, commissions, orpayments for delivering notices required by Section 24.005, Property Code, relating to eviction actions.” TEX. LOC.GOV’T CODEANN. 5 154.005(d) (Vernon 1999). You ask two questions related to these fees. You first ask, “What are the notices ‘required by Section 24.005, Property Code, relating to eviction actions’ for purposes of Section 154.005 ofthe Local Government Code?“’ Second, given the constitutional requirement that fees earned by constables “shall be paid into the county treasury,” TEX.CONST.art. XVI, 5 61(d), you ask, “What fees, commissions, orpayments may aconstable retain forhimself?” Request Letter, supra note 1. 

### I. LePalBackwound
Before answering your questions, we briefly review the statutory scheme. Section 24.005 of the Property Code requires a landlord to give a tenant written notice to vacate before filing an eviction suit, a forcible detainer suit, or a forcible entry and detainer suit. See TEX. PROP. CODE ANN. (i24.005(a)-(d) (Vemon 2000). Such anotice, aletter from landlord to tenant, may be given inperson orby mail. See id. 824.005(f). A notice to vacate is not official process issued by acourt and there isno requirement that anotice to vacate be delivered by aconstable. See id.*Indeed, prior

‘Letter from Honorable Will Hartnett, Chair, Committee on the Judiciary, Texas House ofRepresentatives, to Honorable Greg Abbott, Texas Attorney General (Apr. 6, 2005) (on file with Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

2Section 24.005 requires that anotice to vacate “shall be given in person or by mail at the premises” and does not require service by a constable: (f) The notice tovacate shall be given in person orby mail atthe premises in question. Notice in person may be by personal delivery to the tenant or any (continued.. .)The Honorable Will Hartnett - Page 2 (GA-0364)

to 1997, attorney general opinions concluded that these written notices were not official process and that constables were not authorized to deliver them or to charge a fee for doing so. See Tex. Att’y Gen. Op. No. H-694 (1975) at 2 (“Sheriffs and constables are statutorily required to ‘execute’ all judicial ‘process’ and ‘precepts ’ ‘directed’ to them by legal authority

. . . . [T]he eviction notice contemplated by [the statutory predecessor to section 24.0051 isnot ‘process’ or a ‘precept’ issued by legal authority and

...sheriffs and constables have no duty, authority, orpower to ‘execute’ such notice.“) (citation omitted); see also Tex. Att’yGen. LO-97-026 (aconstable lacks authority to serve anotice to vacate and acornmissioners court may not authorize aconstable to serve notices tovacate by purporting to establish a fee for the service).
In 1997, the legislature amended the statute establishing constables’ general powers and duties to authorize constables to deliver section 24.005 notices:
A constable shall execute and return asprovided by law each process, warrant, and precept that is directed to the constable and is delivered by a lawful officer. Notices required by Section 24.005, Property Code, relating to eviction actions areprocess for purposes ofthis section that may be executed by a constable.
TEX.LOC.GOV’T CODE ANN. § 86.021(a) (Vernon Supp. 2004-05) (emphasis added); see also Act ofMay 26, 1997,75th Leg., R.S., ch. 884,§ 1,1997 Tex. Gen. Laws 2819,2819 (adding italicized language). At the same time, the legislature amended section 154.005 of the Local Government Code to add subsection (d), which provides as follows:
A constable may receive, in addition to Subsection (c), all fees, commissions, or payments for delivering notices required by Section 24.005, Property Code, relating to eviction actions. Notices may only be delivered when not in conflict with the official duties and responsibilities of the constable. A constable delivering said notices must not be wearing upon his orher person auniform or any insignia which would usually be associated with the position of

personresidingatthe premises who is 16years of age or older or personal delivery to the premises and affixing the notice to the inside ofthe main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question. Ifthe dwelling has no mailbox and has a keyless bolting device, alarm system or dangerous animal that prevents the landlord from entering the premises toleave the notice tovacate on the inside ofthe main entry door, the landlord may securely affix the notice on the outside of the main entry door. (g) The noticeperiod is calculated from the day on which the notice is delivered.
TEX.PROP.

CODE ANN. 3 24.005(f)-(g) (Vernon 2000).The Honorable Will Hartnett - Page 3 (GA-0364)

constable nor may the constable use a county vehicle or county equipment while delivering said notices. For purposes of collecting fees for serving said notices, a constable is considered a private process server.
TEX.Lot. GOV’TCODE ANN.5 154.005(d) (1999), added byAct ofMay 26, 1997,75th Leg., R.S., ch. 884, §2, 1997 Tex. Gen. Laws 28 19,28 19. 

### II. Analysis
We begin with your question about the fees referred to in section 154.005(d) of the Local Government Code. Because section 154.005(d) provides that a constable may retain “all fees, commissions, orpayments fordelivering notices required by Section 24.005, Property Code, relating to eviction actions,” TEX.LOC.GOV’TCODE ANN. 8 154.005(d) (Vernon 1999), you wish to know what notices are “required by Section 24.005, Property Code, relating to eviction actions.” Request Letter, supra note 1. Section 24.005 ofthe Property Code requires only one kind ofnotice, anotice to vacate,3 which a landlord orperson who purchases aforeclosed residential property must give a

3Section 24.005 of the Property Code provides in pertinent part as follows:

(a) Ifthe occupant is atenant under awritten lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days’ written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in awritten lease or agreement. A landlord who files aforcible detainer suit on grounds that the tenant isholding over beyond the end of the rental term or renewal period must also comply with the tenancy termination requirements of Section 91.OO 1. (b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant atleast three days’ written notice tovacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. If a building is purchased at a tax foreclosure sale or atrustee’s foreclosure sale under alien superior to the tenant’s lease and the tenant timely pays rent and is not otherwise in default under the tenant’s lease after foreclosure, thepurchaser must give a residential tenant of the building at least 30 days’ written notice to vacate if the purchaser chooses not to continue the lease. The tenant is considered to timely pay the rent under this subsection if, during the month of the foreclosure sale, the tenant pays the rent for that month to the landlord before receiving any notice that a foreclosure sale is scheduled during the month or pays the rent for that month to the foreclosing lienholder or the purchaser at foreclosure not later than the fifth day after the date ofreceipt of awritten notice ofthe name and address ofthe purchaser that requests payment. Before a foreclosure sale, a foreclosing lienholder may give written notice to atenant stating that aforeclosure notice has been given to the landlord or owner of the property and specifying the date of the foreclosure. (continued.. .)The Honorable Will Hartnett - Page 4 (GA-0364)

tenant or other person possessing the property before filing an eviction suit, aforcible detainer suit, or a forcible entry and detainer suit. See TEX. PROP. CODE ANN. 524.005(a)-(d) (Vernon 2000). Section 154.005(d) of the Local Government Code permits a constable to retain a fee only for delivering anotice to vacate. Itdoes not permit aconstable toretain afee for delivering anotice that is not required by section 24.005, such as a fee for serving acitation in an eviction suit, a forcible detainer suit, or a forcible entry and detainer suit.
Next you wish to know, in essence, whether section 154.005(d), inpermitting constables to retain fees for delivering notices to vacate, comports with article XVI, section 61 of the Texas Constitution. Article XVI, section 61 requires that all constables must be compensated on a salary basis:
In all counties in this State, the Commissioners Courts shall

be authorized to determine whether precinct officers shall be compensated on a fee basis or on a salary basis, with the exception that it shall be mandatory upon the Commissioners Courts, to compensate alljustices of the peace, constables, deputy constables and precinct law enforcement officers on a salary basis.
TEX.CONST. art. XVI, 8 61(b) (emphasis added). Moreover, “[a]11fees earned by district, county andprecinct officers shall bepaid into the county treasury where earned forthe account ofthe proper fund.” Id. 861(d). Consistent with this directive, section 154.003 ofthe Local Government Code provides that “[a] district, county, orprecinct officer who ispaid an annual salary shall charge and collect inthe manner authorized by law all fees, commissions, and other compensation permitted for official services performed by the officer. The officer shall dispose of the collected money as provided by Subchapter B, Chapter 113,” which requires all fees to be deposited in the county treasury. TEX.LOC.GOV’T CODE ANN.5 154.003 (Vernon 1999); see also id. 8 113.02 1(a) (“The fees, commissions, funds, and other money belonging to acounty shall be deposited with the county treasurer by the officer who collects the money.“).

(c) If the occupant is a tenant of a person who acquired possession by forcible entry, the landlord must give theperson at least three days’ written notice to vacate before the landlord files a forcible detainer suit. (d) In all situations in which the entry by the occupant was a forcible entry under Section 24.001, theperson entitled topossession must give the occupant oral or written notice to vacate before the landlord files a forcible entry and detainer suit. The notice tovacate under this subsection may be to vacate immediately or by a specified deadline. (e) If the lease or applicable law requires the landlord to give a tenant an opportunity to respond to anotice ofproposed eviction, anotice to vacate may not be given until the period provided for the tenant to respond to the eviction notice has expired.
Id. 6 24.005(a)-(e) (emphasis added).The Honorable Will Hartnett - Page 5 (GA-0364)

“The purpose of [article XVI, section 611was to abolish the fee system ofcompensating the officers named and toplace them on asalary basis.” Wichita County v.Robinson, 276 S.W.2d 509, 513(Tex. 1954). A statute that permits asalaried officer to retain afee as compensation in addition to his or her salary violates article XVI, section 61. See id. at 515 (holding that statute permitting county tax assessor-collector to retain portion of fee for issuing title certificate as compensation in addition to county salary violated article XVI, section 61).
Whether an official may retain a fee in addition to his or her salary depends upon whether the fee is afee ofoffice. For example, section 154.005(a) ofthe Local Government Code expressly permits ajustice of the peace to receive fees for performing marriages in addition to a salary, and section 154.005(b) provides that acounty judge may do the same. See TEX.LOC.GOV’TCODE ANN. § 154.005(a)-(b) (Vemon 1999). Anumber ofattorney general opinions have concluded thatjustices ofthe peace and county judges may charge a fee for conducting marriage ceremonies and that the fee need not be deposited in the county treasury. See Tex. Att’y Gen. Op. Nos. DM-397 (1996) at 7, JM-22 (1983) at 2, S-70 (1953) at 2. Those opinions rely on the Texas Supreme Court’s holding inMoove v.Sheppard, 192 S.W.2d 559 (Tex. 1946)’ that although public officials may not charge fees forperforming their official duties, they may charge and keep fees for services that they are not legally obligated to perform. See id. at 560 (“The general principle prohibiting public officials from charging fees for the performance oftheir official duties does not prohibit them from charging for their services for acts that they are under no obligation, under the law, to perform.“). In that case, the supreme court concluded that clerks ofthe courts of appeals were not required to account to the state for money they collected forproviding uncertified, unofficial copies ofopinions because no statute required the clerks to furnish the copies, no statute fixed afee for such services, and no statute required the clerks to deposit money they received for the services inthe state treasury. See id. at 562. As this office recently summarized in Attorney General Opinion GA-0145, These attorney general opinions suggest that a fee for conducting amarriage ceremony isnot a“fee ofoffice” for purposes of article XVI, section 61 ofthe Texas Constitution and that section 154.005 is constitutional with respect to the disposition ofthese fees because article XVI, section 61 does not mandate that a fee for performing a marriage must be deposited in the county treasury. Although the Family Code authorizes justices ofthe peace and county judges, among others, toconduct amarriage ceremony, see TEX.FAM. CODEANN. 82.202(a)(4) (Vemon 1998)’ they are not required to exercise that authority, and no statute establishes a fee for this service. See Tex. Att’y Gen. Op. Nos. DM-397 (1996) at 1,JM-22 (1983) at 1, S-70 (1953) at 1.
Tex. Att’y Gen. Op. No. GA-0145 (2004) at 6. By contrast, Attorney General Opinion GA-0145 concluded that section 154.005(a) of the Local Government Code violates article XVI, section 61 to the extent itpermits ajustice ofthe peace to receive fees for issuing certified copies ofbirth and death certificates in addition to his or her annual salary:

[A]justice ofthe peace who also serves as local registrar is required to provide certified copies ofbirth and death certificates, and the feeThe Honorable Will Hartnett - Page 6 (GA-0364)

for issuing these records is fixed by law. A fee for issuing abirth or death certificate is ajustice of the peace “fee of office.” Id. (citations omitted).
We conclude that a fee a constable receives for delivering a notice to vacate required by section 24.005 ofthe Property Code isnot afee ofoffice. First, section 24.005 does not require that anotice to vacate be delivered by aconstable. See supra note 2. And although section 86.021 of the Local Government Code permits a constable to deliver such notices, it does not require a constable to do so. See TEX. Lot. GOV’T CODEANN. 9 86.021(a) (Vernon Supp. 2004-05). Moreover, section 154.005(d) ofthe Local Government Code expressly provides that delivering such notices isnot an official constable duty and prohibits aconstable from delivering these notices in an official capacity:

Notices may only be delivered when not in conflict with the official duties and responsibilities of the constable. A constable delivering said notices must not be wearing upon his orher person auniform or any insignia which would usually be associated with the position of constable nor may the constable use a county vehicle or county equipment while delivering said notices. For purposes of collecting fees for serving said notices, a constable is considered a private process server. Id. 6 154.005(d) (Vemon 1999). In addition, no statute establishes afee for this service.
In sum, although article XVI, section 61 generally precludes aconstable from retaining in addition to his or her salary any fee, that prohibition does not apply to afee for delivering anotice to vacate required by section 24.005 of the Property Code. Section 154.005(d) of the Local Government Code, in permitting a constable to retain in addition to his or her salary a fee for delivering anotice to vacate required by section 24.005 ofthe Property Code, does not violate article XVI, section 61. Our conclusion here is limited to a fee for delivering anotice to vacate expressly required by section 24.005 ofthe Property Code and does not reach any other type offee aconstable collects.The Honorable Will Hartnett - Page 7 (GA-0364)

SUMMARY Section 154.005(d) ofthe Local Government Code permits a constable to retain in addition to his orher salary afee for delivering a notice to vacate required by section 24.005 of the Property Code. Article XVI, section 61 of the Texas Constitution precludes a constable from retaining any fee of office in addition to his or her salary. That prohibition does not apply to afee for delivering anotice to vacate required by section 24.005 of the Property Code, which is not a fee of office. Very truly yours,

BARRY R. MCBEE First Assistant Attorney General
NANCY S. FULLER Chair, Opinion Committee Mary R. Crouter Assistant Attorney General, Opinion Committee