Could a Louisiana justice of the peace appoint someone else to serve papers when the constable was available?

Plain-English summary

A justice of the peace reportedly refused to use one of the two constables in the ward and appointed someone else to serve court papers. In the official opinion, the AG said that practice violated R.S. 13:3478 when a constable or deputy was qualified, willing, present, and able to perform service. The statute described service made by another person in those circumstances as “void and of no effect.”

The AG distinguished cases in which the constable or deputy could not or would not act. R.S. 13:3477 then allowed the justice to use the sheriff or deputy, or appoint a special deputy constable. The opinion referred questions about a justice's judicial conduct to the Judicial Administrator. The PDF's second-page header reads “OPINION 02-0017,” although its first page identifies the document as Opinion 02-0018.

Currency note

This opinion was issued in 2002. 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.

Common questions

Could a justice of the peace choose a different process server when a constable was available?
The AG said the statute gave the qualified, willing constable or deputy priority in the circumstances it described; service by another person was void.

What if the constable or deputy was unable or refused to act?
The opinion said R.S. 13:3477 permitted the justice to use the sheriff or deputy, or appoint a special deputy constable.

Did the AG decide whether the justice violated judicial ethics rules?
The opinion directed questions within the Code of Judicial Conduct to the Judicial Administrator rather than deciding them.

Background and statutory framework

R.S. 13:3478 supplied the priority and void-service rule when the constable or deputy could act. R.S. 13:3477 supplied the alternative when that officer was unable or refused. The AG applied those provisions to the reported practice of appointing another individual despite two constables in the ward.

Citations and references

• R.S. 13:3478 (constable or deputy service when available)
• R.S. 13:3477 (service when constable or deputy cannot act)

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/02-0018

Original opinion text

DEPARTMENT OF JUSTICE
P.O. Box 94005
RICHARD P. IEYOUB
TEL: (504) 342-7013
ATTORNEY GENERAL
FAX: (504) 342-7335

February 25, 2002
OPINION 02-0018

57 JUSTICE OF THE PEACE AND CONSTABLES
Ms. Connie Gottchalck-Moore
R.S. 13:3478; R.S. 13:3477
Service executed by an individual appointed by a justice of the
Justice of the Peace
peace is void and of no effect where the constable and his
P. O. Box 1133
deputy are able and willing to execute service of court
Covington, LA 70434
documents as required by law.

Dear Ms. Moore:

You advise this office that a justice of the peace, unspecified in your correspondence, refuses to use one of the two constables in his ward, but instead continues to appoint another individual to execute service. Such an action violates R.S. 13:3478, providing:

§3478. Constable or deputy constable to act when not disqualified or unwilling or unable to act

When there is a constable or duly appointed deputy constable not disqualified to act because of relationship, or unable to act on account of sickness or other cause, and who is willing to act, and who is personally present when conservatory writs are sued out, then and in these cases, the justice of the peace for whose ward said constable or his duly appointed deputy constable to the exclusion of the sheriff or his deputy, or a special deputy constable, to execute all orders, citations, summons, seizures, and writs in civil cases, and in such cases services made by other than said constable or his duly appointed deputy constable shall be void and of no effect.

The statute provides that where the constable or his deputy is not disqualified or otherwise unable or unwilling to act, service made by another individual is "void and of no effect."

In the event that the constable or his deputy is unable or refuses to act, a justice of the peace may allow another party to serve papers for his court. R.S. 13:3477 provides:

§3477. Inability or refusal of constable or deputy constable to act; employment of sheriff or deputy; appointment of special deputy constable

In case of the inability or refusal to act on the part of the constable or a duly appointed deputy constable because of relationship, sickness, or

Page 2

Ms. Connie Moore
OPINION 02-0017
Page 2
from other causes in civil suits, and in case of the execution of conservatory writs in civil suits, and justices of the peace may employee either the sheriff or his deputy or appoint a special deputy constable to execute all orders, citations, summons, seizures, and writs.

A justice of the peace is governed by the Code of Judicial Ethics. It is suggested you consult with the Judicial Administrator for resolution of all questions falling within the ambit of the Code of Judicial Conduct. The Judiciary Commission of the Louisiana Supreme Court may be contacted at 301 Loyola Avenue, Room 109, New Orleans, Louisiana, 70112, and by phone at (504) 568-8299.

Very truly yours,

RICHARD P. IEYOUB
ATTORNEY GENERAL

BY:

KLK:ams