**Au-.** 

# - 76wll

lonN In ElI.L *aTo- aRum-- 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 andliability for failure to do so. Dear Mr. Renweber:

You have requested our opinion concerning the dutyof a sheriff to execute civil process andwhether 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 thatthe County Commissioners Court of Harris Countyhas refused to appropriate any money **to** the sheriff’s office for underwriting the department set uptherein which had the dutyof executing civil procesr.

You further ask our opinion as towhether 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** Countywill direct civil process tothe constablee rather than to the sheriff.

**Finally,** our opinion is sought as towhether Harri.6 County would be liable for the sheriff’s failure to execute process where such failure was generated by a refusal to provide, byappropriation. 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 andprecepts 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; andany 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 towhich such process is returnable, as for a contempt, not exceeding one hundred dollars at the discretion of the court, which fine shall goto the county treasury; and such sheriff shall also be liable tothe party injured **for** all damages hemay sustain.

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

A sheriff is therefore under alegal dutyto execute process directed to him by legal authority. Article 6873, V. T. C.S., is absolute in its terms andan inadequate operating budget will not excuse a sheriff’s failure to execute process directed tohim. 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 inprocess execution is likewise imposed by article 2287, V. T. C. S.

**However,** the service and execution of the various types of civil process are notthe duty andfunction ofthe aheriff exclusively. Rule 15, Texas Rules of Civil Procedure, provides in part:

The style of all writs andprocess shall be ‘The State of Texas;’ andunless otherwise specially provided by law or these rules every suchwrit andprocess shall be directed to any.sheriff or an constable within bpplied).the State OfTexas* * ’ ’ Other Rules of Civil Procedure indicate that either the sheriff or a constable may execute the following legal process andwrits: citations, subpoenas. process issuing from the Supreme Court, attachments, execution, garnishment, injunctions, sequestration, forcible entry and detainer citations andwrits of restitution, writs ofpartition 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 aparticular form or kindof process. See for example Election Code art. 7.11 (service ofprocess under various articles of theElection Code); V. T. C.S. , ship and estate process); Prob. Code sec. art. 2286a (lunacy, guardianV. T. C. S., 33 (citation inprobate cases);

art. 2418 (jurors injustice court). Additionally, articles 4413 (11)and (12), V. T. C. S., clothe the Texas Rangers andthe 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 dutyof executing process only uponthe sheriff a’ndin such iretances the sheriff would have the exclusive authority and power to execute process. See: for example V.T.C.S., article 6874, (legislative process).

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

Accordingly, it is our opinion that a sheriff does nothave the exclusive dutyto execute process except where a statute, rule or court order so provides.

Your final question is whether a county would beliable 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 theappointment of subordinates, provides in part:

Whenever any district, county or precinct officer shall require the services of deputies, assistants or clerlw inthe performance of his duties he shall apply tothe County Commissioners’ Court ofhis county for authority to appoint such deputies, assistants. or clerks, stating by sworn application the number needed, the position tobe filled andthe 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 andthe 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 andfix the compensation tobe paid them within the limitations herein prescribed anddetermine the number to be appointed ai inthe discretion **of** said court may be proper;. . . (Emphases supplied). It is clear that a commissioners court has reasonable discretion inthe employment of staff for the sheriff’s office. Compare, Attorney General Opinion M-708 (1970). A commissioners court has the authority to adopt abudget “a.8in its judgment the facts andthe lawwarrant andthe interests of the taxpayers demand. ” V. T. C. S., article 1666a. There is therefore noaffirmative dutywhich could give rise toliability 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 donot consider the situation inwhich commissioners might be foundto have acted maliciously.

p. 2650,

,’ -

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

SUMMARY A sheriff has the statutory

_. . _ dutyto execute **process** directed to him by legal authority. Any failure toperform such duty could subject the sheriff to afine and / or possible damagen. The sheriff &es nothave the exclusive authority to execute process. The commissioners court would notbe liable for a sheriff’s failure to execute process.

APPROVED:

Opinion Committee jwb

p. 2651