Can a Texas constable skip serving process because he has to attend every justice court session?

Plain-English summary

A county attorney asked the Attorney General to settle a dispute about a constable's duties. The constable argued that two requirements in section 86.021 of the Local Government Code clash: subsection (a) tells him to serve process, and subsection (e) tells him to attend every session of the justice court. The justice of the peace had ordered him to attend each session, and the constable said doing so would leave him no time to serve process. The county attorney asked which duty wins.

The Attorney General concluded that neither duty yields to the other. Both are mandatory, and the law does not let a constable skip one because it interferes with the other. The opinion leaned on the long-standing principle that statutory duties imposed on a public officer are absolute; a prior opinion had said a sheriff could not excuse a failure to serve process by pointing to an inadequate budget, and the constable's duties under section 86.021 are absolute in the same way.

As a practical matter, the opinion pointed out that a constable cannot serve process while sitting in court, and the court's hours are not his to set, so his court duty does constrain the rest of his day. But unless the court is in session around the clock, there are still hours left to serve process. If a constable truly cannot do both, the answer is not to abandon one duty: he can ask the commissioners court under section 86.011 to approve a deputy (showing the deputy is needed to handle the office's business), or process can be served by the sheriff instead. The opinion added that the commissioners court's discretion over a deputy is not unlimited, since it cannot refuse in a way that effectively guts the office. Finally, the county attorney asked whether a constable who disobeys an order to attend could be punished for contempt; the opinion noted the court's general contempt powers but said it was reluctant to comment further on a matter for the justice of the peace.

Currency note

This opinion was issued in 2001. 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

Constables (what the opinion held): The opinion concluded a constable must perform both the duty to attend every justice court session and the duty to serve process, and may not treat them as in conflict so as to skip one. A constable short on time should seek a deputy through the commissioners court rather than drop a duty.

Justices of the peace and commissioners courts (what the opinion held for them): The opinion confirmed a justice of the peace may require the constable's attendance at every session, and that the commissioners court decides whether to approve a requested deputy, though it cannot use that discretion to abolish or restrict the constable's office.

Common questions

Do attending court and serving process really both have to happen?
Yes. The opinion concluded both are independent, mandatory duties under section 86.021, and a constable cannot avoid one by saying it conflicts with the other.

What can a constable do if there genuinely isn't enough time?
The opinion said he may apply to the commissioners court under section 86.011 for approval to appoint a deputy, showing it is necessary to handle the office's business. Process can also be served by the sheriff.

Can a justice of the peace make the constable attend every single session?
The opinion, relying on an earlier letter opinion, treated subsection (e) as requiring attendance whenever the court is in session, whether for a trial, a docket call, or a hearing.

Can a constable be held in contempt for not attending?
The opinion noted that a court has the power to enforce its lawful orders and may punish for contempt, but it declined to say more, deferring to the justice of the peace on that question.

Background and statutory framework

Section 86.021 of the Local Government Code sets out a constable's duties. Subsection (a) requires the constable to execute and return each process, warrant, and precept directed to him by a lawful officer, and treats Property Code section 24.005 eviction notices as process. Tex. Loc. Gov't Code Ann. § 86.021(a) (Vernon Supp. 2001); Tex. Prop. Code Ann. § 24.005. Subsection (e) requires the constable to attend each justice court held in the precinct. Id. § 86.021(e). The opinion treated both as absolute duties, following the rule that statutory duties on a public officer must be performed. A constable who lacks time may apply to the commissioners court for a deputy, showing the deputy is necessary to handle the office's business; that decision rests with the commissioners court, whose discretion cannot be used to abolish or restrict the office. Id. §§ 86.011, 86.011(a); Vondy v. Comm'rs Court, 714 S.W.2d 417 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.). Process may also be served by the sheriff. Id. § 85.021 (Vernon 1999). A court has all powers necessary to enforce its lawful orders and may punish for contempt. Tex. Gov't Code Ann. §§ 21.001(a), 21.002(a) (Vernon Supp. 2001).

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. §§ 86.021(a), (e), 86.011, 86.011(a), 85.021
• Tex. Prop. Code Ann. § 24.005
• Tex. Gov't Code Ann. §§ 21.001(a), 21.002(a) (Vernon Supp. 2001)

Cases:

• Vondy v. Comm'rs Court, 714 S.W.2d 417 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0413
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0413.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

September 20, 2001

The Honorable Bill Moore
Johnson County Attorney
2 North Main Street
Cleburne, Texas 76031

Opinion No. JC-0413

Re: Duties of a constable under section 86.021 of the Texas Local Government Code (RQ-0376-JC)

Dear Mr. Moore:

A constable in your county asserts that two of the duties mandated by section 86.021 of the Local Government Code are in conflict. As you explain it, the constable contends that his attendance at every session of the justice court will prevent him from serving process. The justice of the peace has required, on the basis of section 86.021(e), that the constable attend each session. You therefore request, assuming the constable's contention that these duties are in conflict to be the case, that this office determine which of these duties takes precedence over the other. All duties assigned by the legislature to a public officer, without exception, must be performed. See Tex. Att'y Gen. Op. No. H-595 (1975) at 2 (statute imposing duty on sheriff to execute process "is absolute in its terms and an inadequate operating budget will not excuse a sheriff's failure" to comply with statutory duties); see also Tex. Att'y Gen. Op. Nos. JM-615 (1987), JM-601 (1986), H-1243 (1978); Tex. Att'y Gen. LO-89-51.

The provisions the constable asserts are in conflict are subsections (a) and (e) of Local Government Code section 86.021, which read as follows:

(a) A constable shall execute and return as provided by law each process, warrant, and precept that is directed to the constable and is delivered by a lawful officer. Notices required by Section 24.005, Property Code, relating to eviction actions are process for purposes of this section that may be executed by a constable.

(e) The constable shall attend each justice court held in the precinct.

TEX. LOC. GOV'T CODE ANN. § 86.021(a), (e) (Vernon Supp. 2001).

A letter opinion issued by this office in 1998, Attorney General Letter Opinion 98-101, which interpreted subsection (e), concluded that the statute requires attendance by the constable "upon the justice court whenever it is in session-whether the nature of the session be a trial, a docket call, or a hearing." Tex. Att'y Gen. LO-98-101, at 2.

An argument similar to that offered by the constable here was rejected by this office in Attorney General Opinion H-595 (1975). In that case, the question concerned the duty of a sheriff to execute civil process when there was a shortage of deputies for this purpose. Citing the relevant statutory provision then in effect, Attorney General Opinion H-595 said that statute was "absolute in its terms and an inadequate operating budget will not excuse a sheriff's failure to execute process directed to him." Tex. Att'y Gen. Op. No. H-595 (1975) at 2. The duties set forth in section 86.021 are similarly absolute in their terms.

Admittedly, the constable cannot serve process while he is in court. Further, the hours set for court session are not within the control of the constable. To that extent, the time he may devote to any other duties is constrained by his duty to attend the justice court. However, unless the justice court were continuously in session, there are other hours in the day during which the constable may fulfill the duty to execute process. If the constable believes that he still has insufficient time to fulfill both duties, he may apply to the commissioners court under section 86.011 of the Local Government Code for the appointment of a deputy. See TEX. LOC. GOV'T CODE ANN. § 86.011 (Vernon 1999) (requiring constable who desires to appoint deputy to apply to commissioners court for approval). He must, in that instance, "show that it is necessary to appoint a deputy in order to properly handle the business of the constable's office that originates in the constable's precinct." Id. § 86.011(a). The determination of the constable's need for the deputy is left to the commissioners court. See id. The court's discretion in this regard, however, is not unfettered, given that it cannot "attempt to abolish or restrict the office of constable by refusing to allow or by preventing the elected official from performing those duties required of him." Vondy v. Comm'rs Court, 714 S.W.2d 417, 422 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.). In the alternative, process may also be served by the sheriff. See TEX. LOC. GOV'T CODE ANN. § 85.021 (Vernon 1999).

The constable has two independent duties, both of which section 86.021 requires him to fulfill. The statute does not permit him to avoid the duty to attend the court on the ground that it interferes with the duty to serve process.

You have further asked whether a constable who failed to obey a court's order to attend as mandated by section 86.021 would subject himself to punishment for contempt. Pursuant to section 21.001 of the Government Code the court "has all powers necessary for . . . the enforcement of its lawful orders," TEX. GOV'T CODE ANN. § 21.001(a) (Vernon Supp. 2001), and pursuant to section 21.002 (with minor exceptions not relevant here) "may punish for contempt," id. § 21.002(a). However, we are loath to invade the province of the justice of the peace by further comment.

SUMMARY

Subsections (a) and (e) of section 86.021 of the Texas Local Government Code mandate two independent duties of a constable, each of which must be fulfilled. Should a constable believe that he has insufficient time to fulfill both duties, he may apply to the commissioners court under section 86.011 of the Local Government Code for the appointment of a deputy.

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee