Does a Texas constable have to serve civil process from a federal court?

Plain-English summary

A constable's main job is serving legal papers and carrying out court orders. The Harris County Attorney asked a two-part question: does a Texas constable have to serve civil process issued by federal courts as part of his official duties, and if not, can he do that work on his own time as a private process server?

On the first question, the Attorney General concluded that a constable is not required to serve federal-court civil process in his official capacity. The statute that defines a constable's process-serving duties, section 86.021 of the Local Government Code, ties those duties to the Texas court system. It directs a constable to execute process "directed to the constable" and "delivered by a lawful officer," to serve civil process within the county, and to attend each justice court in the precinct. Reading those duties together, the Attorney General concluded they refer to process issued by state courts, not federal courts. Texas courts treat constables and sheriffs as officers of the state court system when they serve process, and a prior opinion had analyzed the sheriff's duty as covering process issued by state authorities.

The Attorney General found support in a federal decision the requester cited, Potomac Leasing Co. v. Uriarte. There, a judgment creditor tried to get the Galveston County Sheriff's Department specially appointed under Federal Rule of Civil Procedure 4(c)(1) to execute a federal judgment after the sheriff refused. The federal court denied the motion, reasoning that comity counseled against a federal court ordering a state officer to execute a federal judgment, and that the rule contemplates a person's willing assumption of the duty. Because a prior opinion had concluded constables and sheriffs have a nondiscretionary duty to serve process under state law and rules, the fact that the Uriarte court treated the sheriff as having discretion to refuse the federal judgment implied the sheriff was under no state-law duty to do it. The same reasoning applied to constables.

On the second question, the Attorney General concluded a constable is not barred from serving federal civil process privately. Unless the law prohibits it (including the constitutional oath to faithfully execute the duties of the office), a constable may perform services that are not part of his official duties, and a prior opinion had recognized that a constable need not account for fees from non-official services. No law was identified that prohibits a constable from serving federal process in a private capacity, so the Attorney General concluded a constable may do so, provided the private work does not interfere with his official duties.

Currency note

This opinion was issued in 1992. 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 86.021 of the Local Government Code, the Texas Rules of Civil Procedure, and Federal Rule of Civil Procedure 4 have all been amended since 1992 (the federal service-of-process rules have been substantially restructured), so confirm the current statutes and rules before relying on anything described here.

Background and statutory framework

Section 86.021 of the Local Government Code provided that 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," "may execute any civil or criminal process throughout the county in which the constable's precinct is located and in other locations as provided by the Code of Criminal Procedure or by any other law," and, where expressly authorized by statute, may perform an act or service (including service of civil or criminal process, citation, notice, warrant, subpoena, or writ) anywhere in the county. The statute also provided that, regardless of the Texas Rules of Civil Procedure, all civil process may be served by a constable in the constable's county or a contiguous county (with an exception for a constable interested in the suit), and that the constable "shall attend each justice court held in the precinct."

Finding no Texas authority directly in point, the Attorney General concluded the emphasized language refers exclusively to state law and to legal process issued by Texas courts. Texas courts have held that in executing civil process, county sheriffs and constables are officers of the court carrying out duties prescribed by state law or constitution. See Henry S. Miller Co. v. Evans, 452 S.W.2d 426 (Tex. 1970); Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.—Houston [14th Dist.] 1989, writ denied). A prior opinion had analyzed the sheriff's duty to execute process under state law as encompassing legal process and writs issued by state authorities, without reference to process issued by federal courts. Attorney General Opinion H-595 (1975). The Attorney General reasoned the constable's duty rests on a similar policy, cf. Attorney General Opinion JM-810 (1987) (examining duty of constables to serve citation under Tex. R. Civ. P. 106(b)), and that, given the constable's role in the state judicial system (including attending justice court under section 86.021(e)), the duties conferred by section 86.021 relate specifically to civil process issued by state courts.

The Attorney General found that conclusion supported by Potomac Leasing Co. v. Uriarte, 126 F.R.D. 526 (S.D. Tex. 1988), which the requester cited. There, a judgment creditor sought to have the Galveston County Sheriff's Department specially appointed under Federal Rule of Civil Procedure 4(c)(1) to execute a federal judgment after the sheriff refused. The court denied the motion, reasoning that comity dictated that a federal court should no more order a sheriff to execute a federal judgment than a state court should compel a United States marshal to execute a state judgment, and that rule 4(c)(1) contemplates a person's willing assumption of the obligation. Id. at 527. Because a prior opinion had concluded constables and sheriffs have a nondiscretionary legal duty to serve civil process properly delivered under state law and rules of civil procedure (Attorney General Opinion JM-810, discussing Tex. R. Civ. P. 103, 105, 106), the Attorney General inferred that the Uriarte court's treatment of the sheriff as having discretion to refuse meant the sheriff was under no state-law duty to perform the requested service. Accordingly, the Attorney General concluded a constable is not required by section 86.021 to serve civil process issued by federal courts.

On the second question, the Attorney General relied on Attorney General Opinion V-733 (1948), which concluded a constable need not account for fees collected for services that are not part of the constable's statutory duties; a necessary premise is that, unless prohibited by law (including the oath under Texas Constitution article XVI, section 1 to faithfully execute the duties of the office), a constable may perform services not part of his official duties. While Attorney General Opinion JM-810 concluded a constable may not act as a private process server for civil process issued by a state court, the requester identified no provision, and the Attorney General was aware of none, prohibiting a constable from serving federal-court process in a private capacity. The Attorney General therefore concluded a constable is not prohibited from serving federal civil process privately, provided the service does not interfere with the constable's official duties.

Common questions

Does a Texas constable have to serve federal-court civil process?
Not in his official capacity. The opinion concluded section 86.021 of the Local Government Code ties a constable's process-serving duties to state-court process, so there is no state-law duty to serve federal-court civil process officially.

Can a constable serve federal process at all, then?
Yes, in a private capacity. The opinion concluded no law prohibits a constable from serving federal civil process privately, as long as it does not interfere with his official duties.

Why does the official duty stop at state-court process?
The statute directs a constable to execute process "directed to the constable" and "delivered by a lawful officer" and to attend justice court, which the opinion read as referring to the state court system. A federal decision, Uriarte, also recognized that a Texas sheriff had discretion to refuse to execute a federal judgment, implying no state-law duty to do so.

Can a constable serve state-court civil process privately?
No. The opinion noted a prior opinion (JM-810) concluded a constable may not act as a private process server for civil process issued by a state court. The private-capacity allowance here was specific to federal-court process.

Citations

• Local Government Code § 86.021
• Texas Constitution article XVI, § 1
• Texas Rules of Civil Procedure 103, 105, 106
• Federal Rules of Civil Procedure 4(c)(1)
• Attorney General Opinions H-595 (1975), JM-810 (1987), V-733 (1948)
• Henry S. Miller Co. v. Evans, 452 S.W.2d 426 (Tex. 1970)
• Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.—Houston [14th Dist.] 1989, writ denied)
• Potomac Leasing Co. v. Uriarte, 126 F.R.D. 526 (S.D. Tex. 1988)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0164
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0164.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 15, 1992

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston 77002-1891

Opinion No. DM-164

Re: Whether a county constable is under a statutory duty to serve civil process issued by federal courts (RQ-133)

Dear Mr. Driscoll:

You ask whether county constables have a statutory duty to serve civil process and other orders issued by federal courts. If they are not under such a duty, you ask whether county constables may perform these services in their private capacities. We conclude that county constables are not required by state law to serve such instruments in their official capacity.

Section 86.021 of the Local Government Code provides the following:

      (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.

      (b) A constable may execute any civil or criminal process throughout the county in which the constable's precinct is located and in other locations as provided by the Code of Criminal Procedure or by any other law.

      (c) A constable expressly authorized by statute to perform an act or service, including the service of civil or criminal process, citation, notice, warrant, subpoena, or writ, may perform the act or service anywhere in the county in which the constable's precinct is located.

      (d) Regardless of the Texas Rules of Civil Procedure, all civil process may be served by a constable in the constable's county or in a county contiguous to the constable's county, except that a constable who is a party to or interested in the outcome of a suit may not serve any process related to the suit.

      (e) The constable shall attend each justice court held in the precinct. [Emphasis added.]

Our research has yielded no Texas authority directly in point, but we think it is clear the language emphasized above refers exclusively to state law and to legal process issued by Texas courts. Texas courts have held that in executing civil process, county sheriffs and constables are officers of the court, carrying out duties prescribed by state law or constitution. See Henry S. Miller Co. v. Evans, 452 S.W.2d 426 (Tex. 1970); Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.—Houston [14th Dist.] 1989, writ denied). This office has previously analyzed the duty of the sheriff to execute process under state law as encompassing legal process and writs issued by state authorities, without reference to process issued by federal courts. Attorney General Opinion H-595 (1975). We think the duty of a constable to serve such instruments is grounded in a similar policy. Cf. Attorney General Opinion JM-810 (1987) (examining duty of constables to serve citation under Tex. R. Civ. P. 106(b), which applies to, inter alia, "officers"). Constables are also required to attend each justice court held in their precincts. Local Gov't Code § 86.021(e). It is evident, then, that constables fulfill an important role in the administration of the state judicial system. Consequently, we believe the duties conferred by section 86.021 relate specifically to civil process issued by state courts.

Our conclusion is supported by a decision cited in your brief, Potomac Leasing Co. v. Uriarte, 126 F.R.D. 526 (S.D. Tex. 1988). The decision explained the court's denial of a motion to have the Galveston County Sheriff's Department specially appointed to execute a judgment obtained in federal court. The appointment was sought under rule 4(c)(1) of the Federal Rules of Civil Procedure, which states, "Process, other than a subpoena or a summons and complaint, shall be served by a United States marshal or deputy United States marshal, or by a person specially appointed for that purpose." A judgment creditor requested the sheriff's department execute the judgment obtained by the creditor. The sheriff refused the request. The judgment creditor then moved to have the sheriff appointed to execute the judgment pursuant to rule 4(c)(1).

The court denied the motion, expressing the view that comity dictated that a federal court should no more exercise its power to order the sheriff to execute on the federal judgment than should a state court attempt to compel a United States marshal to execute on a state judgment. 126 F.R.D. at 527. In addition, the court concluded that rule 4(c)(1) contemplates a person's willing assumption of the obligation to serve process under special appointment. Absent such cooperation, the court declined to exercise its broad discretion to order the sheriff to act.

This office has previously concluded that constables have a nondiscretionary legal duty to serve civil process properly delivered to them under state law and rules of civil procedure. Attorney General Opinion JM-810 (discussing Tex. R. Civ. P. 103, 105, 106). Sheriffs are subject to the same rules. Thus, it may reasonably be inferred that in concluding that the sheriff had the discretion to refuse to execute the judgment, the court in Uriarte determined that the sheriff was under no official duty arising under state law to perform the requested service. Accordingly, we conclude that a constable is not required by section 86.021 to serve civil process issued by federal courts.

Your second question, conditioned on a negative response to your first question, is whether a constable is authorized to perform these services in his individual capacity. Attorney General Opinion V-733 (1948) concluded that a county constable is not required to account for fees collected for the performance of services that are not part of the constable's statutory duties. A necessary premise to this conclusion is that unless prohibited by law (including his oath that he will faithfully execute the duties of his office, see Tex. Const. art. XVI, § 1), a constable may perform services that are not part of his official duties. Attorney General Opinion JM-810 essentially concludes that a constable may not act as a private process server with regard to civil process issued by a state court, but you have identified no provision of law, and we are aware of none, which prohibits a constable from serving process issued by federal courts in his private capacity. Consequently, we conclude that a constable is not prohibited from serving civil process issued by federal courts in his private capacity provided such service does not interfere with the constable's official duties.

                             SUMMARY

      A county constable is not required to serve civil process issued by federal courts in his official capacity under section 86.021 of the Local Government Code. A constable is not prohibited from performing such services in his private capacity provided such service does not interfere with the constable's official duties.

                                            DAN MORALES
                                            Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Steve Aragón
Assistant Attorney General