A

JIM MATTOX Attorney General
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# The Attorney General of Texas July 29, 1983

HonorableMike Driscoll Harris CountyAttorney 1001 Preston, Suite 634 Houston, Texas 77002 Y---~’ -I- ,_ -_-_ .-----\ ; I .ys52fJ
OpinionNo. JM-51 Re: Whether a constable may charge the IndustrialAccident Board fees for serving subpoenas issued in connection with administrativehearings DearMr. Driscoll: You have requested our opinion as to whether a constable may "charge the Industrial Accident Board fees for serving subpoenas issuedby theboard in connectionwith its administrativehearings." The board or any member is authorized to subpoena witnesses, article 8307, section 4, V.T.C.S., and constables are empowered to "execute and return. . . all process,warrants and precepts" directed to them "by any lawful officer,"article 6885,V.T.C.S. In Attorney General Opinion MN-209 (1980). this office held that sheriffs and constables are not entitled to receive fees from the IndustrialAccident Board for serving subpoenas issued by the board. That opinionwas based on article 3933a.V.T.C.S.,which establisheda fee schedule for sheriffs and constables and provided, in pertinent part: For each person, corporation or legal entity on

whom service of citation, subpoena, summons, or process not otherwise provided for, is performed or attempted and return made, including mileage, if any, a fee of: (a) Small Claims Courts $ 5.00 (b) Justice Courts 8.00 (c) All other Courts 10.00 The opinion reasoned that, since it had been consistentlyheld that an administrative agency is not a "court," and since statutes are strictly construedagainst allowinga feeby implication,a sheriff or constable was not entitled to a fee for serving subpoenas issued by the board.

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Article 3933a was repealed in 1981. Acts 1981, 67th Leg., ch. 379, at 1001, §2(b). Article 3926a,V.T.C.S.,now provides:

(a) The commissionerscourtof each countymay ,setreasonable fees to be charged by the offices of sheriffsand constables. ..~. _~, _ ",~."':"'(b) A commissioners court may not set fees

higher than is necessary to pay the expenses of providing the services. In view of the repeal of article 3933a and the enactment of article 3926a to allow a commissioners court to set "reasonable fees. . . for servicesby the offices of sheriffs and constables,"we must conclude that a Harris County constable is now entitled to charge the Industrial Accident Board fees for serving subpoenas issued by the board, provided the commissioners court of Harris County so authorizes. Attorney General Opinion MN-209 is overruled to the extent of conflict. SUMMARY

Pursuant to article 3926a, V.T.C.S.. and the repeal of article 3933a.V.T.C.S., a Harris County constable is entitled to charge the Industrial Accident Board fees for serving subpoenas issued by the board, provided the commissionerscourt of Harris County so authorizes.

JIM MATTOX Attorney General of Texas TOM GREEN FirstAssistantAttorney General DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby Rick Gilpin AssistantAttorneyGeneral APPROVED: OPINION COMMITTEE Rick Gilpin,Acting Chairman Jon Bible David Brooks Colin Carl Jim Moellinger
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