DAN MORALES

ATTORNEY GENERAL 

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## PCexarl September 15,1992

Honorable Mike Driscoll Harris County Attorney 1001Preston, Suite 634 Houston 77002-1891 Opinion No.DM-164

Re: Whether a county constable isunder a statutory duty to serve civilprocess 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 issuedby federal courts. Ifthey 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 suchinstruments in their officialcapacity.

Section 86.021ofthe 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 andisdeliveredbya lawfulofficer. (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 orbyanyotherlow. (c) A constable expresslyauthor&d bytiututeto 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 islocated. (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 ofa suit may not serve anyprocess related to the suit.

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(e) The constable shall attend eachjustice court held in the precinct. [Emphasis added.] Gur research has yielded no Texas authority directly inpoint, 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 ofthe court, carrying,out duties prescriied by state lawor constitution SeeHenryS. 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 officehas previously analyxed the duty ofthe sheriff to execute process under state lawas 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) (examining duty ofconstables 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.ocaIGov’t Code 086.021(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 civilprocess issuedby state courts.

Gur conchtsion is supported by a decision cited in your brief, Potomac Lenring Co.v. Uriurre,126F.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) ofthe Federal Rules ofCivil 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.” Ajudgment creditor requested the sheriffs department execute thejudgment obtained by the creditor. The sheriff refused the request. Thejudgment creditor then moved to have the sheriffappointed to execute thejudgment 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. 126F.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.itsbroad discretion to order the sheriff to act.

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This office has previously concluded that constables have a nondiscretionary legal duty to serve civilprocess properly delivered to them under state Jawand 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 thejudgment, the court in Uriartedetermined that the sheriff wasunder 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 issuedby 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 isnot required to account for fees collected for the performance of services that are not part ofthe 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 ofhis office.,see Tex Const. art. XVJ, !Il), 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’sofficialduties. 

### 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

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WILLPRYOR First Assistant Attorney General

MARYKELLBR Deputy Assistant Attorney General

RENEAHIcRs SpecialAssistant Attorney General

MADELEINE B.JOHNSON Chair, Opinion Committee Prepared by Steve Arag6n Assistant Attorney General

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