Can a Texas constable set up a payment plan for someone with a justice-court warrant?

Plain-English summary

Senator Jeff Wentworth, then chairing the Senate Select Committee on Open Government, put four questions to the Attorney General about how much discretion a Texas constable has when handling outstanding warrants issued by a justice court.

The first question was whether a constable can offer payment arrangements or accept partial payment from a defendant with an outstanding warrant. The opinion said no. A constable has only the powers expressly given by the constitution and statutes or necessarily implied from them. The Legislature has authorized constables to make certain collections for the county, and it has authorized courts to waive fees in some situations, but it gave constables no power to waive fees, negotiate payment plans, or take partial payment. When a constable executes a warrant, he is carrying out the court's order, and an officer of the court does not get to define the objectives of that order on his own.

The second and third questions, answered together, asked about timing: could a constable accept payment on one offense while not arresting on other warrants, or adopt a policy that de-emphasizes warrant execution for a stretch of time? Local Government Code section 86.021 says a constable "shall execute and return" each warrant directed to him, and "shall" imposes a duty; a constable who fails or refuses can be fined for contempt. But the statute sets no deadline, and courts and the AG's office have recognized that a constable has a limited range of choice and must prioritize when juggling many warrants. So a decision to temporarily delay a warrant could, depending on the specific facts, violate that duty, which is why the opinion said a constable should execute outstanding warrants as timely as possible.

The fourth question asked whether a constable could direct that some defendants be entered into Tiburon or other interagency law-enforcement reporting systems while leaving others out. Here the opinion pointed to chapter 60 of the Code of Criminal Procedure, which sets up the state criminal history record system kept by the Department of Public Safety and requires an arresting agency to report offenders charged with a felony or a misdemeanor not punishable by fine only. On this duty, constables have no discretion: they must report the information chapter 60 requires.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas Senate (as the opinion described it): The opinion answered all four of Senator Wentworth's questions, concluding constables may not arrange or accept partial payment on justice-court warrants, have only limited discretion over the timing of warrant execution, and must comply with chapter 60 criminal-history reporting without discretion.

Constables (as the opinion described it): The opinion read a constable's role as carrying out the court's orders, not modifying them, so a constable lacked authority to waive fees or take partial payment, faced a section 86.021 duty (enforced by contempt) to execute warrants, and had a mandatory chapter 60 reporting obligation.

Defendants with outstanding warrants (as the opinion described it): The opinion addressed the constable's authority, not the defendant's options; it concluded a constable could not offer the defendant a payment plan or partial payment to resolve an outstanding justice-court warrant.

Common questions

Can a Texas constable let me pay a warrant in installments or accept a partial payment?
According to the opinion, no. It found no statute giving a constable authority to waive fees, negotiate payment plans, or accept partial payment from a defendant with an outstanding justice-court warrant.

Does a constable have to execute every warrant right away?
The opinion read section 86.021 as imposing a duty to execute and return each warrant, with no fixed deadline. A constable has limited discretion to prioritize among many warrants, but deliberately delaying could violate the duty depending on the facts, and risks contempt.

Can a constable choose which warrants to work first?
The opinion recognized that a constable with multiple outstanding warrants necessarily exercises judgment and prioritizes. It cautioned, though, that the constable should act as timely as possible given the contempt risk.

Can a constable decide which defendants get entered into a criminal-history database?
No. The opinion concluded constables have no discretion here and must report the information required by chapter 60 of the Code of Criminal Procedure to the state criminal history record system.

Background and statutory framework

A constable is limited to powers expressly conferred by, or necessarily implied from, the constitution and statutes, as the opinion noted (citing Tex. Att'y Gen. Op. No. GA-0656 (2008)). The Legislature authorized constables to make some collections for the county, see Tex. Code Crim. Proc. Ann. art. 103.003(a) (West Supp. 2011) and Tex. Loc. Gov't Code Ann. § 86.023 (West 2008), and authorized courts to waive fees for indigent defendants, Tex. Code Crim. Proc. Ann. art. 45.0491 (West Supp. 2011), but conferred no comparable power on constables to set payment terms. The opinion relied on Merritt v. Harris Cnty., 775 S.W.2d 17, 24 (Tex. App.-Houston [14th Dist.] 1989, writ denied), for the point that an officer of the court does not define the objectives of executing the court's orders.

Local Government Code section 86.021 lists a constable's powers and duties and provides that a constable "shall execute and return as provided by law each process, warrant, and precept" directed to him. Tex. Loc. Gov't Code Ann. § 86.021, (a) (West Supp. 2011). "Shall" imposes a duty, Tex. Gov't Code Ann. § 311.016(2) (West 2005), and a constable who fails or refuses to execute a lawfully directed warrant shall be fined for contempt, Tex. Loc. Gov't Code Ann. § 86.024(a) (West 2008). Courts have recognized a "limited range of choice" in execution, Rhode v. Denson, 776 F.2d 107, 109 (5th Cir. 1985), and that a high degree of discretion attends service of process, Arrington v. Cnty. of Dallas, 792 S.W.2d 468, 471 (Tex. App.-Dallas 1990, writ denied); see also Tex. Att'y Gen. Op. No. GA-0560 (2007). On reporting, chapter 60 of the Code of Criminal Procedure establishes the DPS-maintained criminal history record system, Tex. Code Crim. Proc. Ann. arts. 60.02(b), .051(a) (West 2006 & Supp. 2011), and requires the arresting agency to initiate reporting for covered offenders, id. arts. 60.08(b), .051 (West Supp. 2011); see also 37 Tex. Admin. Code § 27.101(c) (2012).

Citations

Cases:

• Merritt v. Harris Cnty., 775 S.W.2d 17, 24 (Tex. App.-Houston [14th Dist.] 1989, writ denied)
• Rhode v. Denson, 776 F.2d 107, 109 (5th Cir. 1985)
• Arrington v. Cnty. of Dallas, 792 S.W.2d 468, 471 (Tex. App.-Dallas 1990, writ denied)

Statutes:

• Tex. Code Crim. Proc. Ann. art. 103.003(a) (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 86.023 (West 2008)
• Tex. Code Crim. Proc. Ann. art. 45.0491 (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 86.021 (West Supp. 2011)
• Tex. Loc. Gov't Code Ann. § 86.021(a)
• Tex. Gov't Code Ann. § 311.016(2) (West 2005)
• Tex. Loc. Gov't Code Ann. § 86.024(a) (West 2008)
• Tex. Code Crim. Proc. Ann. arts. 60.02(b), .051(a) (West 2006 & Supp. 2011)
• Tex. Code Crim. Proc. Ann. arts. 60.08(b), .051 (West Supp. 2011)
• 37 Tex. Admin. Code § 27.101(c) (2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0940
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0940.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 29, 2012

The Honorable Jeff Wentworth Opinion No. GA-0940
Chair, Select Committee on Open Government
Texas State Senate Re: Authority of a constable with regard to
Post Office Box 12068 payment of outstanding warrants issued by a
Austin, Texas 78711-2068 justice court (RQ-1024-GA)

Dear Senator Wentworth:

You ask four questions related to a constable's authority to exercise discretion with regard to the execution of warrants. You first ask whether a constable has the "authority within existing law to offer payment arrangements to, or accept partial payment from, defendants with outstanding warrants issued by a justice court[.]"[1] Request Letter at 1. A constable is limited to those powers expressly conferred by or necessarily implied from the constitution and statutes. Tex. Att'y Gen. Op. No. GA-0656 (2008) at 1. The Legislature has expressly authorized constables to make collections on behalf of the county in various circumstances. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 103.003(a) (West Supp. 2011); see also TEX. LOC. GOV'T CODE ANN. § 86.023 (West 2008) (explaining constable's collection liability); but see Tex. Att'y Gen. LO-96-031, at 2 (concluding that a constable is not authorized to collect restitution for a bad check). Furthermore, the Legislature has authorized the courts to waive fees for defendants in certain circumstances. See, e.g., TEX. CODE CRIM. PROC. ANN. art. 45.0491 (West Supp. 2011) (authorizing the waiver of fees for indigent defendants). However, we find no express authority giving a constable discretion to waive fees, negotiate payment plans, or accept partial payment from a defendant. When a constable executes a warrant, he or she is carrying out an order of the court. "As an officer of the court, [constables] do not have the authority to define objectives in the execution" of the court's orders. Merritt v. Harris Cnty., 775 S.W.2d 17, 24 (Tex. App.-Houston [14th Dist.] 1989, writ denied). Thus, absent express authority to do so, we conclude that existing law does not allow a constable to offer payment arrangements to, or accept partial payment from, defendants with outstanding warrants issued by a justice court.

Your second question asks whether a constable has "authority within existing law to accept in-person payments (partial or in their entirety) for one offense while not arresting the defendant on other outstanding warrants issued by a justice court[.]" Request Letter at 1. Relatedly, your third question asks:

Does a constable have authority within existing law to establish a policy for his/her administration that effectively or intentionally reduces the emphasis on the execution of warrants issued by a justice court for any period of time (i.e., if the administration has met its budget requirements for the current year and makes a policy decision to reduce emphasis on warrants and puts off the execution of outstanding warrants to another budget year)?

Request Letter at 1. Because these questions both address whether and to what extent a constable has discretion with regard to the timing of execution of warrants, we answer them together.

Local Government Code section 86.021 lists a constable's general powers and duties. TEX. LOC. GOV'T CODE ANN. § 86.021 (West Supp. 2011). The plain language of subsection 86.021(a) is clear: "[a] constable shall execute and return as provided by law each process, warrant, and precept that is directed to the constable." Id. § 86.021(a) (emphasis added). The Legislature's use of the word shall "imposes a duty" on the part of constables, and constables may not refuse to fulfill their statutory duties. TEX. GOV'T CODE ANN. § 311.016(2) (West 2005). Furthermore, "[i]f a constable fails or refuses to execute and return according to law a process, warrant, or precept that is lawfully directed and delivered to the constable, the constable shall be fined for contempt ...." TEX. LOC. GOV'T CODE ANN. § 86.024(a) (West 2008). However, section 86.021 does not establish a clear deadline within which a constable must execute a warrant. Courts and this office have recognized that constables have some discretion when they fulfill their duty to carry out the courts' orders. See Rhode v. Denson, 776 F.2d 107, 109 (5th Cir. 1985) (recognizing that constables possess a "limited range of choice" in executing warrants); Arrington v. Cnty. of Dallas, 792 S.W.2d 468, 471 (Tex. App.-Dallas 1990, writ denied) ("A high degree of discretion is necessary ... in fulfilling duties for service of process."); Tex. Att'y Gen. Op. No. GA-0560 (2007) at 3 ("Even in serving process a constable may exercise some discretion."). A constable with multiple outstanding warrants to execute at a given time will necessarily have to exercise judgment and prioritize when determining which warrants to execute first. A decision to temporarily delay executing a warrant may or may not violate the constable's duty under section 86.021, depending on facts specific to that decision. However, given the risk of being held in contempt of court for failure to execute a warrant, a constable should execute an outstanding warrant in as timely a manner as possible.

Your final question asks:

Does a constable or his/her administration have authority within existing law to direct that some defendants with outstanding warrants issued by a justice court be placed in Tiburon or any other inter agency law enforcement reporting systems, while others were not (effectively limiting the ability of other areas of law enforcement to have knowledge of some outstanding warrants)?

Request Letter at 2. Your request letter does not direct us to any authority specifically addressing a constable's duty to report—electronically or otherwise—outstanding warrants. However, we note that chapter 60 of the Code of Criminal Procedure establishes a criminal history record system, which is maintained by the Department of Public Safety and must include specific information about certain offenders. TEX. CODE CRIM. PROC. ANN. arts. 60.02(b), .051(a) (West 2006 & Supp. 2011). The Legislature requires that an "arresting agency ... initiate the reporting process for each offender charged with a felony or a misdemeanor not punishable by fine only," and it specifies what information must be included for each offender. Id. arts. 60.08(b), .051 (West Supp. 2011); see also 37 TEX. ADMIN. CODE § 27.101(c) (2012) (Tex. Dep't of Pub. Safety, Computerized Criminal History Sys.) (requiring that local law enforcement agencies "must report ... the information required by Texas Code of Criminal Procedure, Chapter 60"). Whether a constable is required to report a specific offender to the criminal history record system may depend on certain facts, including the nature of the offense. Constables, as law enforcement officers, have no discretion when fulfilling this duty and must comply with the requirements imposed by Code of Criminal Procedure, chapter 60. 37 TEX. ADMIN. CODE § 27.101(c) (2012) (Tex. Dep't of Pub. Safety, Computerized Criminal History Sys.).

SUMMARY

Texas law does not allow a constable to offer payment arrangements to, or accept partial payment from, defendants with outstanding warrants issued by a justice court.

A constable's decision to temporarily delay executing a warrant could, depending on the facts involved, violate the constable's duty under Local Government Code section 86.021 to execute and return as provided by law each warrant that is directed to the constable.

Constables must report the information required by Code of Criminal Procedure, chapter 60, to the criminal history record system established under that chapter.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

JASON BOATRIGHT
Chair, Opinion Committee

Virginia K. Hoelscher
Assistant Attorney General, Opinion Committee

[1] See Letter from Honorable Jeff Wentworth, Chair, Senate Select Comm. on Open Gov't, to Honorable Greg Abbott, Tex. Att'y Gen. at 1 (Nov. 8, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").