Au-. - 76wll 

l o nN In ElI.L 

*a To - a Rum-- 

April 29, 1975 

The Honorable Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Opinion No. H- 595 

Re: Duty of sheriff to execute 

civil process and liability for 

failure to do so. 

Dear Mr. Renweber: 

You have requested our opinion concerning the duty of a sheriff to 

execute civil process and whether he would be subject to any liability for 

failure to do so because of a shortage of deputies to execute process directed 

to him. You report in connection with this question that the County 

Commissioners Court of Harris County has refused to appropriate any 

money to the sheriff’s office for underwriting the department set up therein 

which had the duty of executing civil procesr. 

You further ask our opinion as to whether it is the exclusive duty of 

the sheriff to execute civil process. According to the information you have 

furnished us, the Commissioners Court is contemplating that the courts of 

Harris County will direct civil process to the constablee rather than to 

the sheriff. 

Finally, our opinion is sought as to whether Harri.6 County would 

be liable for the sheriff’s failure to execute process where such failure 

was generated by a refusal to provide, by appropriation. sufficient funds 

for the employment of deputies to be used in executing civil process. 

Article 6873. V. T. C. S. , provides: 

Each sheriff shall execute all process and precepts 

directed to him by legal authority, and make return 

thereof to the proper court, on or before the day to 

which the same is returnable; and any sheriff who 

shall fail so to do, or who shall make a false return 

on any process or precept shall, for every such 

offense, be liable to be fined by the court to which 

such process is returnable, as for a contempt, not 

exceeding one hundred dollars at the discretion of 

the court, which fine shall go to the county treasury; 

and such sheriff shall also be liable to the party 

injured for all damages he may sustain. 

p. 2648 
The Honorable Joe Resweber - Page 2 (H-595) 

A sheriff is therefore under a legal duty to execute process 

directed to him by legal authority. Article 6873, V. T. C. S., is absolute 

in its terms and an inadequate operating budget will not excuse a sheriff’s 

failure to execute process directed to him. 

article 6873, V. T. C. S., 

Moreover, as provided by 

a sheriff’s failure to execute process is punishable by fine and subjects a defaulting sheriff to possible liability to a 

party injured as a result of the failure to serve or execute the process. 

Liability to a party injured by default in process execution is likewise 

imposed by article 2287, V. T. C. S. 

However, the service and execution of the various types of civil 

process are not the duty and function of the aheriff exclusively. Rule 15, 

Texas Rules of Civil Procedure, provides in part: 

The style of all writs and process shall be ‘The 

State of Texas;’ and unless otherwise specially 

provided by law or these rules every such writ 

and process shall be directed to any.sheriff or 

an constable within 

bpplied).the State Of Texas* * ’ ’ 

Other Rules of Civil Procedure indicate that either the sheriff or a 

constable may execute the following legal process and writs: citations, 

subpoenas. process issuing from the Supreme Court, attachments, 

execution, garnishment, injunctions, sequestration, forcible entry and 

detainer citations and writs of restitution, writs of partition and quo 

warrant0 citations. TEX. R. CIV. P. 15, 103, 177, 488, 594, 622, 686, 699, 

742, 755, 762 and 780. 

Additionally, a number of Texas statutes provide that constables, 

as well as sheriffs, may execute a particular form or kind of process. 

See for example Election Code art. 7.11 (service of process under various 

articles of the Election Code); V. T. C. S. , 

ship and estate process); Prob. Code sec. 

art. 2286a (lunacy, guardianV. T. C. S., 

33 (citation in probate cases); 

art. 2418 (jurors in justice court). Additionally, articles 

4413 (11) and (12), V. T. C. S., clothe the Texas Rangers and the officers 

of the Highway Patrol with the authority to execute process when 

specially directed to do so by a court of r,ecord. 

There are few statutes that impose the duty of executing process 

only upon the sheriff a’nd in such ire tances the sheriff would have the 

exclusive authority and power to execute process. See: for example 

V.T.C.S., article 6874, (legislative process). 

p. 2649 
The Honorable Joe Resweber - Page 3 (H-595) 

Accordingly, it is our opinion that a sheriff does not have the 

exclusive duty to execute process except where a statute, rule or court 

order so provides. 

Your final question is whether a county would be liable for the 

failure to execute such process where the commissioners court has 

failed to provide the sheriff with an adequate budget. 

Article 3902, V. T. C. S., which pertains to the appointment of 

subordinates, provides in part: 

Whenever any district, county or precinct officer 

shall require the services of deputies, assistants 

or clerlw in the performance of his duties he shall 

apply to the County Commissioners’ Court of his 

county for authority to appoint such deputies, assistants. 

or clerks, stating by sworn application the number 

needed, the position to be filled and the amount to 

be paid. Said application ehall be accompanied by 

a statement showing the probable receipts from ‘fees, 

commissions and compensation to be collected by said 

office during the fiscal year and the probable disbureemerits which shall include all salaries and expenses of 

said office; and said court shall make its order 

authorizing the appointment of such deputies, assistants 

and clerks and fix the compensation to be paid them 

within the limitations herein prescribed and determine 

the number to be appointed ai in the discretion of said 

court may be proper;. . . (Emphases supplied). 

It is clear that a commissioners court has reasonable discretion 

in the employment of staff for the sheriff’s office. Compare, Attorney 

General Opinion M-708 (1970). A commissioners court has the authority 

to adopt a budget “a.8 in its judgment the facts and the law warrant and the 

interests of the taxpayers demand. ” V. T. C. S., article 1666a. There is 

therefore no affirmative duty which could give rise to liability on the part 

of the county for failure of a sheriff to execute process. 

Furthermore, the doctrine of legislative immunity would protect 

the members of the commissioners court from any liability for asserted 

budgetary deficiencies. Torres v. Owens, 380 S. W. 2d 30 (Tex. Civ. 

APP. -- Corpus Christi 1964. writ ref., n. r. e. ). We do not consider the 

situation in which commissioners might be found to have acted maliciously. 

p. 2650 
, 

,’ - 

The Honorable Joe Rerweber - Page 4 (H-595) 

SUMMARY 

A sheriff has the statutory 

_. . _ 

duty to execute 

process directed to him by legal authority. 

Any failure to perform such duty could subject 

the sheriff to a fine and / or possible damagen. 

The sheriff &es not have the exclusive 

authority to execute process. 

The commissioners court would not be 

liable for a sheriff’s failure to execute process. 

APPROVED: 

Opinion Committee 

jwb 

p. 2651