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 forunsuccessful attempts at service of civil process (RQ-1660)
DearMr. Pruitt:
You askwhether sheriffs and constables are entitled to charge a fee forunsuccessful attempts at service of process. The resolution ofyour question turns on the authorityof the commissioners court to set such a fee under section 118.131 of the Local Government Code.
InAttorney General Opinion JM-880 (1988) relevant provisions of section 118.131 and thehistory of these provisions were succinctly set forth, as follows:

In 1981, the legislature enacted article 3926a, V.T.C.S. (sincecodified 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 feeshigher than is necessary topay the expenses ofproviding the services.
Acts 1981, 67th Leg., ch. 379, § 1,at 1001. Subsection 2(a) of thebill that enacted article 3926a contained the following provision: 'Feesprovided for sheriffs and constables inother laws inconflict with this Act are repealed to the extent they conflict

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with thisAct.' Id. at 0 2. But the bill also stated, insection 3(b): Until a commissioners court prescribes different feespursuant toArticle 3926a, Revised Civil Statutes ofTexas, 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 ofthis Act are governed by the law ineffect at the time the services were performed. Attorney General Opinion JM-880 (1988),at 1-2.
InAttorney General Opinion JM-880 it was concluded that the commissioners courtsmay 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 ofwhether the commissioners court may set a fee for unsuccessful attempts to serve civil process, you call attention toAttorney General Opinion H-756 (1975)stating that a sheriff isnot entitled to a fee for anunsuccessful 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 anattempt 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 thepenalty for state-defined crimes tovary from county to county andwould violate both 'dueprocess' and 'equalprotection' constitutional rights." Itwas stated thatwhile the same reasoning would apply to felony cases, itwas unnecessary to utilize such analysis since the provisions of the Code ofCriminal Procedure governing fees in felony cases were repealed by the 69th Legislature in 1985. Acts 1985, 69th Leg., ch. 269, at 1300, 1307. Itwas concluded that the.application of section 118.131 to civil cases was unaffected.

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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.
InAttorney General Opinion JM-51 (1983) itwas noted that prior to the repeal ofarticle 3933a, sheriffs and constables were not entitled to receive fees from the Industrial Accident Board for serving subpoenas issued by the board. However, itwas concluded that under article 3926a (nowsection 118.131) a charge for serving such subpoenas was appropriate, provided the charge was authorized by the commissioners court.
We do notbelieve thatRule 17of the Texas Rules of Civil Procedure prohibits a commissioners court from authorizing a fee foranunsuccessful attempt to serve civil process by a sheriff or constable. Rule 17provides:

Except where otherwise expressly provided by law orthese rules, the officer receiving anyprocess to be executed shall not be entitled inany case todemand his fee for executing the same in advance of such execution, but his fee shallbe taxed and collected as other costs inthe case. The source forRule 17 was article 3911, V.T.C.S., repealed, Acts 1939, 46th Leg., ch.25, g 1,at 201, and codified asRule 17. Prior to the repeal ofarticle 3933a disallowing a feeuntil service isperformed and return made, Attorney General Opinion H-756 (1975)construed Rule 17asprohibiting a county ordistrict clerk from collecting as court costs a fee for service ofprocess 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.

Feesprovided for sheriffs and constables inother laws inconflict with theprovisions of this act are repealed to the extent they are inconflict 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 inunsuccessful attempts at service of civil process under the authority granted the commissioners court

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to set reasonable fees for services by such officers. However, until a commissioners court sets a feepursuant to section 118.131, a sheriff or constable isnot entitled to any fee foranunsuccessful attempt to serve process. SUMMARY Commissioners courts may set reasonable fees for services performed by sheriffs and constables inunsuccessful attempts to serve civil process. Very truly ~02 , 

# J hffiJ&

L JIM MATTOX Attorney General ofTexas
MARY KELLER FirstAssistant Attorney General LOUMCCREARY Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General RICK GILPIN Chairman, Opinion Committee Prepared by Tom G. Davis Assistant Attorney General

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