When a sheriff's deputy or police officer serves or tries to serve a civil summons, does North Carolina law require the court to add a process fee to the case costs and collect it, then send the money to the right governmental unit?
Plain-English summary
Larry J. McGlothlin, attorney for the Cumberland County Sheriff's office, asked the AG to confirm whether G.S. 7A-311(a)(1) required the court to assess, collect, and remit the civil process service fee whenever a law enforcement officer served or attempted to serve civil process. The 1979 AG said yes.
The opinion's analysis is a short legislative history walk-through. G.S. 7A-311(a)(1) had been amended four times in the 14 years preceding the request, with the "or attempted to be served" phrase coming in and out of the text:
- 1965 (Chapter 310, Session Laws of 1965): Original enactment included the fee for service "or attempted to be served."
- 1973 (Chapter 417): Amended G.S. 7A-311(a)(1) by deleting "or attempted to be served." For a period after 1973, only successful service triggered the fee.
- 1973 Second Session (Chapter 1139): Added a new sentence specifying that the fee would go to the city (if served by a city police officer) or the county (if served by the sheriff). The amendment also restored "or attempted to be served" in the context of remittance allocation.
- 1979 (Chapter 801): Rewrote G.S. 7A-311(a)(1) and split it into subsections (a) and (b). Subsection (a) set the fee amount; subsection (b) said that if the process "is served, or attempted to be served," the fee would go to the city (for police service) or the county (for sheriff service).
The 1979 rewrite settled the recurring drafting tension. The fee is assessed and collected whether the officer actually accomplishes service or only attempts it. The legislative back-and-forth on the "attempted" language reflected differing views about whether the public should pay for unsuccessful service attempts, but the final answer in the 1979 rewrite was clear: yes, attempted service triggers the fee.
The remittance allocation rule is also worth noting. The fee follows the officer category: city if a police officer, county if the sheriff. The fee is one of the modest funding streams supporting law enforcement civil process work.
Currency note
This opinion was issued in 1979. 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. G.S. 7A-311 has been amended several times since 1979; current fee amounts and remittance rules should be checked against the present statute and the North Carolina court cost schedule.
Historical context: what the AG concluded
The opinion is a model of clean legislative-history reasoning. Each amendment is named, dated, and described in terms of what it did to the operative language. The AG did not have to do much interpretation; the question was answered by the chronological sequence of amendments and the final text the 1979 rewrite produced.
The drafting history reveals a small policy debate inside the General Assembly. The 1965 original included attempted service; the 1973 amendment took it out; the 1973 Second Session amendment and the 1979 rewrite put it back. The pattern suggests that the legislature, after experiment, settled on a fee-for-effort model rather than a fee-for-results model.
The policy rationale for fee-for-effort is straightforward: the officer expends time and resources to attempt service regardless of whether the recipient is at home, accepts the papers, or runs. The court system's cost recovery should track the officer's effort, not the result. The party requesting service might bear the fee even if the recipient evades service.
The remittance allocation (city for police, county for sheriff) reflects the basic structure of North Carolina law enforcement funding. Sheriffs are county officers funded primarily by the county. City police are funded by the municipality. The fee follows the cost center.
Background and statutory framework
Civil process is the formal document (summons, subpoena, order, garnishment) by which a court asserts personal or property jurisdiction over a party. Service of civil process is the physical act of delivering the document to the party in a way that complies with the rules of civil procedure.
North Carolina law gives several categories of servers authority to deliver civil process: sheriffs and deputies, city police officers in specified circumstances, designated process servers under special rules, and (in limited cases) certified mail. The most common in 1979, and still today, was sheriff service.
G.S. 7A-311 sits in the Chapter 7A statutes governing the General Court of Justice. Article 28 of Chapter 7A deals with court costs. Section 311 specifies the fees for various civil processes (writs, subpoenas, summonses).
The "attempted to be served" question matters because process service often involves multiple attempts. The officer goes to the address, finds no one home, leaves a notice, returns at a different time, and so on. Each attempt costs time. If the fee covered only successful service, the public absorbed the cost of all unsuccessful attempts. The 1979 final text answered this by tying the fee to attempted service, not just successful service.
Common questions
What happens if the officer attempts service many times before succeeding?
The opinion does not address the cumulative-attempt situation. The fee schedule is typically per item of process, not per attempt. Most likely the fee is assessed once per process even if multiple attempts are required. The fee schedule sets the rate.
Does the requesting party always pay?
In the first instance, yes, the party who initiates the action pays the costs (including process fees). At the end of the case, court costs may be taxed against the losing party under cost-shifting rules. Process fees are part of taxed costs.
What if the officer never attempts service at all?
The opinion is about attempted-or-successful service. If the officer simply does not attempt service, no fee is triggered. The fee follows the officer's effort.
Could a private process server collect the same fee?
Private process servers operate under separate rules. The G.S. 7A-311 fee schedule is for law enforcement officers serving process. Private server fees are governed by separate provisions and by contract with the requesting party.
How does the remittance work mechanically?
The clerk of court collects the fee as part of court costs in the case. The clerk remits the appropriate share to the city (for police-served process) or the county (for sheriff-served process). The bookkeeping is part of the clerk's regular court cost administration.
Source
Citations
- G.S. 7A-311(a)(1)
- Chapter 310, Session Laws of 1965
- Chapter 417, Session Laws of 1973
- Chapter 1139, Session Laws of 1973 (2d Session)
- Chapter 801, Session Laws of 1979
Original opinion text
Requested By: Larry J. McGlothlin Cumberland County Sheriff's Attorney
Question: Does G.S. 7A-311(a)(1) require civil process fees to be assessed, collected and remitted when the law enforcement officer serves or attempts to serve civil process?
Conclusion: Yes.
Chapter 310, Session Laws of 1965, enacted G.S. 7A-311 and provided the fee to be assessed and collected for each item of civil process served or attempted to be served.
Chapter 417, Session Laws of 1973 amended G.S. 7A-311(a)(1) by deleting the phrase "or attempted to be served".
Chapter 1139, Session Laws of 1973 (2d Session) amended G.S. 7A-311 (a)(1) by adding a new sentence: "If the process is served, or attempted to be served by the sheriff, the fee shall be remitted to the city rather than the county."
Chapter 801, Session Laws of 1979 rewrote G.S. 7A-311(a)(1) and divided it into subsections (a) and (b). The first deals with the amount of the fee to be assessed and (b) contains the language that if the process is served, or attempted to be served, the fee shall be paid to the city if by a policeman and to the county if by the sheriff.
It appears clear from the history and language of G.S. 7A-311(a)(1), that the fee is paid when the process is served, or attempted to be served, by the law enforcement officer.
Rufus L. Edmisten
Attorney General
James F. Bullock
Senior Deputy Attorney General