Can a Texas sheriff or constable charge a fee for trying but failing to serve civil process?

Texas AG Opinion JM-1046: Can a Sheriff Charge for a Failed Attempt to Serve Process?

Plain-English summary

Serving legal papers is part of what sheriffs and constables do, and they charge fees for it. But process service does not always succeed; sometimes the person cannot be found. A Terry County official asked the Attorney General a practical question: can a sheriff or constable collect a fee for an attempt to serve civil process that did not work out?

The Attorney General's answer was a qualified yes, and the qualification matters. The power to set these fees belongs to the county commissioners court under section 118.131 of the Local Government Code, which lets the commissioners court set reasonable fees, capped at what it costs to provide the service, for the work of sheriffs and constables. The AG saw no reason that authority could not extend to fees for unsuccessful attempts at service, and concluded that Rule 17 of the Texas Rules of Civil Procedure, which deals with when an officer's fee gets taxed and collected as costs, does not stand in the way. So a commissioners court is free to authorize a fee for an unsuccessful attempt.

The catch is that the fee does not exist until the commissioners court creates it. The AG was clear that until a commissioners court actually sets such a fee under section 118.131, a sheriff or constable is not entitled to any fee for an unsuccessful attempt. This fit with the history: an older statute (former article 3933a) had specifically denied a fee for unsuccessful attempts, and when the Legislature replaced it in 1981 with the commissioners-court fee-setting system, it left the question of what fees to allow up to each county's commissioners court rather than guaranteeing any particular fee by statute.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG 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.

Section 118.131 of the Local Government Code and Rule 17 of the Texas Rules of Civil Procedure have been amended since 1989, and the older repealed statutes referenced here (articles 3926a, 3933a, and 3911) are of historical interest only. Anyone dealing with a present-day question about sheriff or constable fees should consult the current statute and the county's current fee schedule rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

Commissioners courts: The opinion confirmed their authority under section 118.131 to set reasonable fees for sheriffs' and constables' services, including unsuccessful attempts to serve civil process.

Sheriffs and constables: The opinion told them a fee for an unsuccessful attempt was available only if their commissioners court had set one; absent that, no such fee could be charged.

Litigants paying service costs: The opinion clarified that any fee for a failed service attempt depended on a locally adopted fee, not on a statewide statutory right.

Common questions

Can a Texas sheriff charge for an unsuccessful attempt to serve civil process?
Only if the commissioners court has set such a fee. The AG concluded that section 118.131 of the Local Government Code lets a commissioners court set reasonable fees for sheriffs' and constables' services, including unsuccessful service attempts.

What if the commissioners court has not set a fee?
Then no fee is owed. The AG concluded that until a commissioners court sets a fee under section 118.131, a sheriff or constable is not entitled to any fee for an unsuccessful attempt.

Does Rule 17 prohibit charging for a failed attempt?
No. The AG concluded that Rule 17 of the Texas Rules of Civil Procedure, which governs when an officer's fee is taxed and collected as costs, does not prohibit a commissioners court from authorizing a fee for an unsuccessful attempt.

Background and statutory framework

The AG framed the question as turning on the commissioners court's authority to set a fee under section 118.131 of the Local Government Code. As recounted in Attorney General Opinion JM-880 (1988), the Legislature in 1981 enacted article 3926a, V.T.C.S. (since codified as section 118.131), providing that the commissioners court of each county may set reasonable fees for services by the offices of sheriffs and constables, and may not set fees higher than necessary to pay the expenses of providing the services. Acts 1981, 67th Leg., ch. 379, § 1, at 1001. Section 2(a) of that bill repealed conflicting fee provisions in other laws to the extent of the conflict, and section 3(b) provided that until a commissioners court prescribed different fees, the fees charged were those provided by the law in effect on August 31, 1981.

JM-880 concluded that commissioners courts may not set fees for the execution of criminal warrants and that the general repealer did not apply in criminal cases (reasoning that varying penal costs county to county would raise due-process and equal-protection problems, and noting the felony-fee provisions of the Code of Criminal Procedure were repealed in 1985), but that the application of section 118.131 to civil cases was unaffected. Focusing on the narrower civil issue, the AG noted Attorney General Opinion H-756 (1975), which had said a sheriff was not entitled to a fee for an unsuccessful 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, § 2(b), at 1001. Attorney General Opinion JM-193 (1984) had concluded that commissioners courts may set fees for services performed by sheriffs and constables under article 3926a even where no fee was authorized before September 1, 1981, and Attorney General Opinion JM-51 (1983) had concluded that although sheriffs and constables were not entitled to fees from the Industrial Accident Board for serving board subpoenas before the repeal of article 3933a, a charge for serving such subpoenas was appropriate under article 3926a if authorized by the commissioners court.

The AG concluded that Rule 17 of the Texas Rules of Civil Procedure does not prohibit a commissioners court from authorizing a fee for an unsuccessful attempt to serve civil process. Rule 17 provides that, except as otherwise expressly provided, an officer receiving process to be executed may not demand his fee in advance of execution, but his fee shall be taxed and collected as other costs in the case. The source for Rule 17 was article 3911, V.T.C.S. (repealed, Acts 1939, 46th Leg., ch. 25, § 1, at 201, and codified as Rule 17). Before the repeal of article 3933a, H-756 had construed Rule 17 as prohibiting a county or district clerk from collecting as court costs a fee for service of process before actual service and return. But section 2(a) of the bill that enacted article 3926a repealed conflicting fee provisions to the extent of the conflict. The AG perceived no reason why a commissioners court may not set reasonable fees for sheriffs' and constables' unsuccessful attempts at service of civil process under its section 118.131 authority to set reasonable fees for such officers' services; until a commissioners court sets such a fee, however, a sheriff or constable is not entitled to any fee for an unsuccessful attempt.

Citations

Statutory authority and rules:

• Local Gov't Code § 118.131 (commissioners court sets sheriff and constable fees)
• Former V.T.C.S. art. 3926a (Acts 1981, 67th Leg., ch. 379, §§ 1, 2(a), 2(b), 3(b), at 1001)
• Former V.T.C.S. art. 3933a (fee for service of process; repealed effective September 1, 1981)
• Former V.T.C.S. art. 3911 (Acts 1939, 46th Leg., ch. 25, § 1, at 201; source of Rule 17)
• Tex. R. Civ. Proc. 17 (officer's fee taxed and collected as costs)
• Acts 1985, 69th Leg., ch. 269, at 1300, 1307 (repeal of felony-fee provisions)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1046
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1046.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

May 17, 1989

Honorable G. Dwayne Pruitt
Terry County Attorney
Terry County Courthouse
Brownfield, Texas 79316

Opinion No. JM-1046

Re: Whether sheriffs or constables are entitled to fees for unsuccessful attempts at service of civil process (RQ-1660)

Dear Mr. Pruitt:

You ask whether sheriffs and constables are entitled to charge a fee for unsuccessful attempts at service of process. The resolution of your question turns on the authority of the commissioners court to set such a fee under section 118.131 of the Local Government Code.

In Attorney General Opinion JM-880 (1988) relevant provisions of section 118.131 and the history of these provisions were succinctly set forth, as follows:

In 1981, the legislature enacted article 3926a, V.T.C.S. (since codified 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 fees higher than is necessary to pay the expenses of providing the services.

Acts 1981, 67th Leg., ch. 379, § 1, at 1001.

Subsection 2(a) of the bill that enacted article 3926a contained the following provision: 'Fees provided for sheriffs and constables in other laws in conflict with this Act are repealed to the extent they conflict with this Act.' Id. at § 2. But the bill also stated, in section 3(b):

Until a commissioners court prescribes different fees pursuant to Article 3926a, Revised Civil Statutes of Texas, 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 of this Act are governed by the law in effect at the time the services were performed.

Attorney General Opinion JM-880 (1988), at 1-2.

In Attorney General Opinion JM-880 it was concluded that the commissioners courts may 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 of whether the commissioners court may set a fee for unsuccessful attempts to serve civil process, you call attention to Attorney General Opinion H-756 (1975) stating that a sheriff is not entitled to a fee for an unsuccessful 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, § 2(b), at 1001.

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.

In Attorney General Opinion JM-51 (1983) it was noted that prior to the repeal of article 3933a, sheriffs and constables were not entitled to receive fees from the Industrial Accident Board for serving subpoenas issued by the board. However, it was concluded that under article 3926a (now section 118.131) a charge for serving such subpoenas was appropriate, provided the charge was authorized by the commissioners court.

We do not believe that Rule 17 of the Texas Rules of Civil Procedure prohibits a commissioners court from authorizing a fee for an unsuccessful attempt to serve civil process by a sheriff or constable. Rule 17 provides:

Except where otherwise expressly provided by law or these rules, the officer receiving any process to be executed shall not be entitled in any case to demand his fee for executing the same in advance of such execution, but his fee shall be taxed and collected as other costs in the case.

The source for Rule 17 was article 3911, V.T.C.S., repealed, Acts 1939, 46th Leg., ch. 25, § 1, at 201, and codified as Rule 17. Prior to the repeal of article 3933a disallowing a fee until service is performed and return made, Attorney General Opinion H-756 (1975) construed Rule 17 as prohibiting a county or district clerk from collecting as court costs a fee for service of process 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:

Fees provided for sheriffs and constables in other laws in conflict with the provisions of this act are repealed to the extent they are in conflict with this act.

Acts 1981, 67th Leg., ch. 379, § 2(a), at 1001.

No reason is perceived why a commissioners court may not set reasonable fees for services performed by sheriffs and constables in unsuccessful attempts at service of civil process under the authority granted the commissioners court to set reasonable fees for services by such officers. However, until a commissioners court sets a fee pursuant to section 118.131, a sheriff or constable is not entitled to any fee for an unsuccessful attempt to serve process.

SUMMARY

Commissioners courts may set reasonable fees for services performed by sheriffs and constables in unsuccessful attempts to serve civil process.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

Footnotes

1. The opinion reasoned that an attempt 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 effect of allowing the penalty for state-defined crimes to vary from county to county and would violate both 'due process' and 'equal protection' constitutional rights." It was stated that while the same reasoning would apply to felony cases, it was unnecessary to utilize such analysis since the provisions of the Code of Criminal Procedure governing fees in felony cases were repealed by the 69th Legislature in 1985. Acts 1985, 69th Leg., ch. 269, at 1300, 1307. It was concluded that the application of section 118.131 to civil cases was unaffected.