Who can serve process by certified mail or publication in a Texas justice court, and what can the clerk charge for it?

Plain-English summary

A county attorney asked the Attorney General two practical questions about how lawsuits get served in Texas justice courts (the small-claims and low-dollar trial courts run by justices of the peace): who is allowed to serve papers by registered or certified mail and by newspaper publication, and what the court clerk can charge for it.

On who may serve, the answer came from Rule 536 of the Texas Rules of Civil Procedure. Any sheriff, constable, or other person authorized by law can serve process, and so can any person the court authorizes by written order who is at least eighteen and not a party to or interested in the case. When a party asks for service by registered or certified mail, or by publication, the clerk of the court makes that service. For citation by publication specifically, the justice court borrows the district- and county-court rules (because Rule 523 says those rules govern justice courts where they fit and Part V of the justice-court rules does not say who serves publication), so Rule 116 controls: publication is served by the sheriff or any constable of any Texas county, or by the clerk of the court where the case is pending.

On the fee, the Attorney General concluded that serving process by registered or certified mail is one of the "process and procedures" already covered by the $15 filing fee a justice court charges for a civil suit (Local Government Code sections 118.121 and 118.122). So the justice court clerk cannot tack on a separate, sheriff-style charge for mailing the papers; the mail service is part of the flat filing fee. The clerk can, however, make the party pay the actual postage in advance, or assess it as a cost, under Civil Practice and Remedies Code section 17.025, unless some other statute exempts that party (for example, governmental entities, certain estate representatives, and taxing units suing to collect delinquent taxes).

Currency note

This opinion was issued in 1993. 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. The Texas Rules of Civil Procedure on service (Rules 116, 523, 535, 536) and the fee statutes (Local Government Code chapter 118 and Civil Practice and Remedies Code section 17.025) have been amended since 1993, and justice court filing fees in particular have changed; confirm the current rule and current fee before relying on anything described here.

Background and statutory framework

Rule 536(a) of the Texas Rules of Civil Procedure governs who may serve citations and other notices: any sheriff, constable, or other person authorized by law, or any person authorized by court order who is at least eighteen and is not a party to or interested in the suit. The same rule directs that service by registered or certified mail and citation by publication be made by the clerk of the court, if requested, and provides that the order authorizing a person to serve process may be made without written notice and without a fee. For citation by publication in justice court, the rules in Part V (Rules of Practice in Justice Courts) do not specify who serves it; Rule 535 sets the answer date for publication service but not the server. Because Rule 523 makes the district- and county-court rules govern justice courts where they can be applied, the Attorney General looked to Rule 116, under which citation by publication is served by the sheriff or any constable of any county of the State of Texas, or by the clerk of the court in which the case is pending.

On fees, sections 118.121 and 118.122 of the Local Government Code set a $15.00 fee for services rendered before judgment in a justice court, covering all required filings and all other process and procedures in a civil suit. The Attorney General read service of process by registered or certified mail as one of those covered procedures, so the $15 fee includes it and the clerk may not charge the separate fee a sheriff would charge for service by mail (citing Local Government Code sections 118.052(3)(E) and 118.063). Separately, Civil Practice and Remedies Code section 17.025 lets the official who serves process by mail require advance payment of the exact postage cost, or assess the postage as costs, in addition to other charges allowed by law. Because Rule 536 makes the justice court clerk a public official permitted to serve process by mail, the clerk may collect advance postage under section 17.025 unless another statute exempts the party from paying such costs (for example, governmental entities under Civil Practice and Remedies Code chapter 6, estate representatives under Probate Code section 12, and taxing units under Tax Code sections 33.48 and 33.49; see also Attorney General Opinions MW-470 and MW-87A (1982)).

Citations

• Tex. R. Civ. P. 536 (who may serve process; clerk serves registered/certified mail and publication on request)
• Tex. R. Civ. P. 116 (service of citation by publication by sheriff, constable, or clerk)
• Tex. R. Civ. P. 523 (district- and county-court rules govern justice courts where applicable)
• Tex. R. Civ. P. 535 (answer date for service by publication in justice court)
• Local Gov't Code §§ 118.121, 118.122 ($15 fee for services rendered before judgment in justice court)
• Local Gov't Code §§ 118.052(3)(E), 118.063 (sheriff's fees for service of process)
• Civ. Prac. & Rem. Code § 17.025 (advance payment or assessment of postage by official serving process by mail)
• Prob. Code § 12; Tax Code §§ 33.48, 33.49 (examples of cost exemptions)
• Attorney General Opinions MW-470, MW-87A (1982)

Common questions

Who can serve papers by certified mail in a Texas justice court case?
Under Rule 536, any sheriff, constable, or other person authorized by law, or a person the court authorizes by order who is at least eighteen and not a party to or interested in the case. When a party requests service by registered or certified mail, the clerk of the court makes that service.

Who serves citation by publication in justice court?
The Attorney General concluded that, through Rule 523, the justice court follows Rule 116: citation by publication is served by the sheriff or any constable of any Texas county, or by the clerk of the court in which the case is pending.

Can the justice court clerk charge extra for serving by mail?
No. The opinion concluded that service by registered or certified mail is part of the $15 filing fee for a justice court civil suit under Local Government Code sections 118.121 and 118.122, so the clerk may not charge a separate sheriff-style fee for it.

Can the clerk make the party pay for postage?
Yes. Under Civil Practice and Remedies Code section 17.025, the clerk may require advance payment of the exact postage cost or assess it as a cost, unless another statute exempts the party (such as governmental entities, certain estate representatives, or taxing units collecting delinquent taxes).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0250
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0250.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and page 2 of the source scan returned no legible text (marked [. . .]); the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

September 3, 1993

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

Opinion No. DM-250

Re: Questions relating to service of process in justice courts under the Texas Rules of Civil Procedure (RQ number not legible in source scan)

Dear Mr. Driscoll:

You ask the following two questions about service of process in cases commenced in justice of the peace courts:

1. Who is authorized to serve process by registered or certified mail and citation by publication?

2. What fee may the clerk of the justice court charge for service of process by registered or certified mail?

In asking the first question, you direct us to the proper interpretation of rule 536 of the Texas Rules of Civil Procedure, which states in part:

(a) Citations and other notices may be served anywhere by (1) any sheriff or constable or other person authorized by law, or (2) by any person authorized by law or by written order of the court who is not less than eighteen years of age. No person who is a party to or interested in the outcome of a suit shall serve any process. Service by registered or certified mail and citation by publication shall, if requested, be made by the clerk of the court in which the case is pending. The order authorizing a person to serve process may be made without written notice and no fee shall be imposed for issuance of such order.

[. . .]

Part V of the Texas Rules of Civil Procedure, "Rules of Practice in Justice Courts," does not contain rules about who is authorized to serve by publication for justice court cases. Rule 535 of the Texas Rules of Civil Procedure provides for the time of citation by publication in justice court suits by specifying the time that the defendant must answer when citation is by publication, but does not say who may serve citation by publication in justice court suits. However, rule 523 states that "[the rules] governing the district and county courts shall also govern the justice courts, insofar as they can be applied, except where otherwise specifically provided by law or these rules." Thus, we think the Texas Supreme Court would rely on the rules for service by publication governing district and county courts. See opinions of [the courts on the] interpretation of rules following rule 535. According to rule 116, citation by publication "shall be served by the sheriff or any constable of any county of the State of Texas, [or] by the clerk of the court in which the case is pending."

The answer to your second question about the permissible fee a justice court clerk may charge for effecting service of process by registered or certified mail is found in sections 118.121 and 118.122 of the Local Government Code. Section 118.121 states in part:

A justice of the peace shall collect the following fees for services rendered to any person:

(a) Services rendered before judgment (Sec. 118.122):

(A) Justice court ................................................. $15.00

(B) The fee for "Services rendered before judgment" under Section 118.121(1) is for all required filings of documents and all other process and procedures in a civil suit in a justice court or small claims court.

(C) The fee is paid by the party initiating the action, cross-action, third-party action, or intervention at the time the applicable action is initiated. The fee is paid only once in each of those actions.

We think "all other process and procedures in a civil suit in a justice court" under section 118.122 includes service of process by registered or certified mail in civil cases. We therefore conclude that pursuant to sections 118.121 and 118.122 of the Local Government Code, service of process by registered or certified mail rendered before judgment is included in the $15.00 filing fee established for a civil suit in the justice court. This conclusion dispels the suggestion that the justice of the peace court clerk may charge the same fee as that charged by a sheriff for service of process by mail; the clerk of the justice court may [not] collect the same fee as that of the sheriff for service by mail. Local Gov't Code §§ 118.052(3)(E), 118.063.

[Civil Practice and Remedies Code section 17.025 provides in part:]

(1) a direct advance payment for the exact cost of the postage required to serve or deliver the process; or

(2) assess the expense of postage as costs.

(b) Charges under this section are in addition to other charges allowed by law for services performed by the official serving the process.

Civ. Prac. & Rem. Code § 17.025. Pursuant to rule 536, a justice court clerk is a public official permitted to serve legal process by mail. Thus, section 17.025 of the Civil Practice and Remedies Code allows the justice court to collect advance payment for the cost of postage unless another statute exempts the party from paying or [posting] security. See, e.g., id. § 6 (generally exempting governmental entities from advance payment of court costs in civil suits); Prob. Code § 12 ([exempting certain estate representatives] [. . .]); Tax Code §§ 33.48, 33.49 (exempting taxing units from liability for costs arising in action for collection of delinquent taxes); Attorney General Opinions MW-470, MW-87A (1982). See generally 16 Tex. Jur. Costs §§ 13.42.

SUMMARY

Pursuant to rule 536 of the Texas Rules of Civil Procedure, the clerk of a justice court must serve citation by publication if asked to do so. Rule 536 of the Texas Rules of Civil Procedure permits any sheriff, constable, or any person authorized by law or any person authorized by court order who is at least eighteen years old to serve process in justice court cases by registered or certified mail. Rule 116 authorizes service by publication in justice court cases by the sheriff or any constable of any county in Texas or the clerk of the court in which the case is pending. Pursuant to sections 118.121 and 118.122 of the Local Government Code, the justice court clerk may charge a fee of $15.00 for service of process by registered or certified mail. The justice court clerk also may collect advance payment for the expense of postage for serving process by mail unless another statute exempts the party from paying such costs.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee