May 17, 1989 

Honorable G. Dwayne Pruitt Opinion No. JM-1046 

Terry County Attorney 

Terry County Courthouse Re: Whether sheriffs or conBrownfield, Texas 79316 stables are entitled to fees 

for unsuccessful attempts at 

service of civil process 

(RQ-1660) 

Dear Mr. Pruitt: 

You ask whether sheriffs and constables are entitled to 

charge a fee for unsuccessful attempts at service of process. The resolution of your question turns on the authority of the commissioners court to set such a fee under 

section 118.131 of the Local Government Code. 

In Attorney General Opinion JM-880 (1988) relevant 

provisions of section 118.131 and the history of these provisions were succinctly set forth, as follows: 

In 1981, the legislature enacted article 

3926a, V.T.C.S. (since codified as section 

118.131 of the Local Government Code), 

reading: 

(a) The commissioners court of each 

county may set reasonable fees to be 

charged for services by the offices of 

sheriffs and constables. 

(b) A commissioners court may not set 

fees higher than is necessary to pay the 

expenses of providing the services. 

Acts 1981, 67th Leg., ch. 379, § 1, at 1001. 

Subsection 2(a) of the bill that enacted 

article 3926a contained the following provision: 'Fees provided for sheriffs and constables in other laws in conflict with this 

Act are repealed to the extent they conflict 

P. 5426 
Honorable G. Dwayne Pruitt - Page 2 (JM-1046) 

. 

with this Act.' Id. at 0 2. But the bill 

also stated, in section 3(b): 

Until a commissioners court prescribes 

different fees pursuant to Article 3926a, 

Revised Civil Statutes of Texas, 1925, the 

fees charged by a sheriff or constable are 

those provided by the law in effect on 

August 31, 1981. Fees charged by a sheriff or constable for services performed 

before the effective date of this Act are 

governed by the law in effect at the time 

the services were performed. 

Attorney General Opinion JM-880 (1988), at 1-2. 

In Attorney General Opinion JM-880 it was concluded 

that the commissioners courts may not set fees for the 

execution of criminal warrants by a sheriff or constable and 

that the general repealer of conflicting statutes found in 

the bill that enacted former article 3926a was not 

applicable in criminal cases.1 

Focusing on the narrower issue of whether the commissioners court may set a fee for unsuccessful attempts to 

serve civil process, you call attention to Attorney General 

Opinion H-756 (1975) stating that a sheriff is not entitled 

to a fee for an unsuccessful attempt to serve process under 

former article 3933a, V.T.C.S. Article 3933a was repealed 

by article 3926a, effective September 1, 1981. Acts 1981, 

67th Leg., ch. 379, 5 2(b), at 1001. 

1. The opinion reasoned that an attempt to set fees in 

misdemeanor cases was unconstitutional in that "[a] law 

allowing different costs to be assessed in different 

counties for the same penal offense would have the affect of 

allowing the penalty for state-defined crimes to vary from 

county to county and would violate both 'due process' and 

'equal protection' constitutional rights." It was stated 

that while the same reasoning would apply to felony cases, 

it was unnecessary to utilize such analysis since the 

provisions of the Code of Criminal Procedure governing fees 

in felony cases were repealed by the 69th Legislature in 

1985. Acts 1985, 69th Leg., ch. 269, at 1300, 1307. It was 

concluded that the.application of section 118.131 to civil 

cases was unaffected. 

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Honorable G. Dwayne Pruitt - Page 3 (JM-1046) 

In Attorney General Opinion JM-193 (1984) it was 

concluded that commissioners courts may set fees for 

services performed by sheriffs and constables in accordance 

with article 3926a, even though no fee for the service was 

authorized prior to September 1, 1981. 

In Attorney General Opinion JM-51 (1983) it was noted 

that prior to the repeal of article 3933a, sheriffs and constables were not entitled to receive fees from the Industrial Accident Board for serving subpoenas issued by the 

board. However, it was concluded that under article 3926a 

(now section 118.131) a charge for serving such subpoenas 

was appropriate, provided the charge was authorized by the 

commissioners court. 

We do not believe that Rule 17 of the Texas Rules of 

Civil Procedure prohibits a commissioners court from 

authorizing a fee for an unsuccessful attempt to serve civil 

process by a sheriff or constable. Rule 17 provides: 

Except where otherwise expressly provided 

by law or these rules, the officer receiving 

any process to be executed shall not be 

entitled in any case to demand his fee for 

executing the same in advance of such 

execution, but his fee shall be taxed and 

collected as other costs in the case. 

The source for Rule 17 was article 3911, V.T.C.S., 

repealed, Acts 1939, 46th Leg., ch.25, g 1, at 201, and 

codified as Rule 17. Prior to the repeal of article 3933a 

disallowing a fee until service is performed and return 

made, Attorney General Opinion H-756 (1975) construed Rule 

17 as prohibiting a county or district clerk from collecting 

as court costs a fee for service of process prior to the 

actual service and return of process. Section 2(a) of the 

bill that enacted article 3926a (now section 118.131) 

contained the following provision. 

Fees provided for sheriffs and constables 

in other laws in conflict with the provisions 

of this act are repealed to the extent they 

are in conflict with this act. 

Acts 1981, 67th Leg., ch. 379, 5 2(a), at 1001. 

No reason is perceived why a commissioners court may 

not set reasonable fees for services performed by sheriffs 

and constables in unsuccessful attempts at service of civil 

process under the authority granted the commissioners court 

p. 5428 
. 

Honorable G. Dwayne Pruitt - Page 4 (JM-1046) 

to set reasonable fees for services by such officers. However, until a commissioners court sets a fee pursuant to 

section 118.131, a sheriff or constable is not entitled to 

any fee for an unsuccessful attempt to serve process. 

SUMMARY 

Commissioners courts may set reasonable 

fees for services performed by sheriffs and 

constables in unsuccessful attempts to serve 

civil process. 

Very truly ~02 , J L hffiJ& 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Tom G. Davis 

Assistant Attorney General 

P. 5429