DAN MORALES 

ATTORNEY GENERAL 

@ffice of tly 9lttornep Qkneral 

&ate of PCexarl 

September 15,1992 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston 77002-1891 

Opinion No. DM-164 

Re: Whether a county constable is under a 

statutory duty to serve civil process issued by 

federal courts (RQ-133) 

Dear Mr. Driscoll: 

You ask whether county constables have a statutory duty to serve civil 

process and other orders issued by federal courts. If they are not under such a duty, 

you ask whether county constables may perform these services in their private 

capacities. We conclude that county constables are not required by state law to 

serve such instruments in their official capacity. 

Section 86.021 of the Local Government Code provides the following: 

(a) A constable shall execute and return as provided by law 

each process, warrant, and precept that is directed to the 

constable and is delivered by a lawful officer. 

(b) A constable may execute My civil or criminal process 

throughout the county in which the constable’s precinct is 

located and in other locations as provided by the Code of 

Criminal Procedure or by any other low. 

(c) A constable expressly author&d by tiutute to perform an 

act or service, including the service of civil or criminal process, 

citation, notice, warrant, subpoena, or writ, may perform the act 

or service anywhere in the county in which the constable’s 

precinct is located. 

(d) Regardless of the Texas Rules of Civil Procedure, all 

civil process may be served by a constable in the constable’s 

county or in a county contiguous to the constable’s county, 

except that a constable who is a party to or interested in the 

outcome of a suit may not serve any process related to the suit. 

p. 862 
Honorable Mike Driscoll - Page 2 W-164) 

(e) The constable shall attend each justice court held in the 

precinct. [Emphasis added.] 

Gur research has yielded no Texas authority directly in point, but we think it 

is clear the language emphasized above refers exclusively to state law and to legal 

process issued by Texas courts. Texas courts have held that in executing civil 

process, county sheriffs and constables are officers of the court, carrying, out duties 

prescriied by state law or constitution See Henry S. iUiUer Co. v. Evans, 452 S.W.2d 

426 (TX 1970); Menin v. Hanis County, 775 S.W.2d 17 (Tex. App.-Houston [14th 

Dist.] 1989, writ denied). This office has previously analyxed the duty of the sheriff 

to execute process under state law as encompassing legal process and writs issued by 

stafe authorities, without reference to process issued by federal courts. Attorney 

General opinion H-595 (1975). We think the duty of a constable to serve such 

instruments is grounded in a similar policy. cf; Attorney General opinion JM-810 

(1987) (e xamining duty of constables to serve citation under Ten R. Civ. P. 106(b), 

which applies to, inter a&u. “officers”). Constables are also required to attend each 

justice court held in their precincts. L.ocaI Gov’t Code 0 86.021(e). It is evident, 

then, that constables fulfill an important role in the administration of the state 

judicial system. Consequently. we believe the duties conferred by section 86.021 

relate specifically to civil process issued by state courts. 

Gur conchtsion is supported by a decision cited in your brief, Potomac 

Lenring Co. v. Uriurre, 126 F.R.D. 526 (S.D. Tex. 1988). The decision explained the 

court’s denial of a motion to have the Galveston County Sheriffs Department 

specially appointed to execute a judgment obtained in federal court. The 

appointment was sought under rule 4(c)( 1) of the Federal Rules of Civil Procedure 

which states, “Process, other than a subpoena or a summons and complaint, shall be 

served by a United States marshal or deputy United States marshal, or by a person 

specially appointed for that purpose.” A judgment creditor requested the sheriffs 

department execute the judgment obtained by the creditor. The sheriff refused the 

request. The judgment creditor then moved to have the sheriff appointed to execute 

the judgment pursuant to rule 4(c)( 1). 

The court denied the motion, expressing the view that comity dictated that a 

federal court should no more exercise its power to order the sheriff to execute on 

the federal judgment than should a state court attempt to compel a United States 

marshal to execute on a state judgment. 126 F.R.D. at 527. In addition, the court 

concluded that rule 4(c)(l) contemplates a person’s willing assumption of the 

obligation to serve process under special appointment. Absent such cooperation, 

the court declined to exercise. its broad discretion to order the sheriff to act. 

p. 863 
Honorable Mike Driscoll - Page 3 W-164) 

This office has previously concluded that constables have a nondiscretionary 

legal duty to serve civil process properly delivered to them under state Jaw and rules 

of civil procedure. Attorney General Opinion JM-810 (discussing Tex. R. Civ. P. 

103, 105, 106). Sheriffs are subject to the same rules. Thus, it may reasonably be 

inferred that in concluding that the sheriff had the discretion to refuse to execute 

the judgment, the court in Uriarte determined that the sheriff was under no official 

duty arising under state law to perform the requested service. Accordingly, we 

conclude that a constable is not required by section 86.021 to serve civil process 

issued by federal courts. 

Your second question, conditioned on a negative response to your first 

question, is whether a constable is authorized to perform these services in his 

individual capacity. Attorney General Opinion V-733 (1948) concluded that a 

county constable is not required to account for fees collected for the performance of 

services that are not part of the constable’s statutory duties. A necessary premise to 

this conclusion is that unless prohibited by law (including his oath that he will 

faithfully execute the duties of his office., see Tex Const. art. XVJ, !I l), a constable 

may perform services that are not part of his official duties. Attorney General 

Opinion JM-810 essentially concludes that a constable may not act as a private 

process server with regard to civil process issued by a state court, but you have 

identified no provision of law, and we are aware of none, which prohibits a 

constable from serving process issued by federal courts in his private capacity. 

Consequently. we conclude that a constable is not prohibited from serving civil 

process issued by federal courts in his private capacity provided such service does 

not interfere with the constable’s official duties. 

SUMMARY 

A county constable is not required to serve civil process 

issued by federal courts in his official capacity under section 

86.021 of the Local Government Code. A constable is not 

prohibited from performing such services in his private capacity 

provided such service does not interfere with the constable’s 

official duties. 

DAN MORALES 

p. 864 
Honorable Mike Driscoll - Page 4 W-164) 

WILL PRYOR 

First Assistant Attorney General 

MARYKELLBR 

Deputy Assistant Attorney General 

RENEAHIcRs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Steve Arag6n 

Assistant Attorney General 

p. 865