Can a Texas county commissioners court create its own civil process office?

Plain-English summary

The county attorney of Chambers County told the Attorney General that, in July 1992, the county commissioners court had created a "Civil Process Office." That office handled the paperwork side of civil process, essentially the duties the sheriff's office used to perform before it was set up, except that the actual service of papers was still done by the sheriff, his deputies, constables, and their deputies. The employee running the civil process office was herself a deputy constable who sometimes served the papers she processed. The county attorney asked whether the commissioners court had the authority to create a civil process department independent of the sheriff's control.

The Attorney General said it did not. A commissioners court can exercise only the powers the Texas Constitution and statutes expressly grant it, plus implied powers reasonably necessary to carry out those express duties. On civil process, the office found the commissioners court has just two statutory roles: under section 81.022(a) of the Local Government Code it issues the notices, citations, writs, and process needed to carry out its own powers and duties, and under section 118.131(a) it sets reasonable fees for the services of the sheriff and constables. Nothing in the statutes, expressly or by implication, lets a commissioners court build a separate civil process department or change the way process is carried out. The sheriff, by contrast, has a statutory duty to execute process directed to him, and failing to do so can expose him to a fine or damages. The office added that a commissioners court may not interfere with or take over the duties of independent county officials, so it concluded the Chambers County court lacked authority to establish an office of civil process.

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 Local Government Code provisions and Texas Rules of Civil Procedure cited here may have been amended since 1993; confirm the current law before relying on anything described here.

What the opinion meant for those who asked

For the Chambers County Commissioners Court and other Texas commissioners courts: The opinion concluded the court had no express or implied statutory authority to create a civil process department. Its civil-process role was limited to issuing process under section 81.022(a) and setting fees for the sheriff and constables under section 118.131(a).

For county sheriffs: The opinion described the sheriff as having a statutory duty to execute process directed to him by legal authority, with a possible fine or damages for failing to do so, and it treated that function as one the commissioners court could not reassign to a separate office.

For constables and others who serve process: The opinion noted that the sheriff is not the exclusive server of process; under the Texas Rules of Civil Procedure and other statutes a sheriff or a constable may serve process, and Texas Rangers and highway patrol officers may do so when directed by a court of record. That shared authority did not, however, give the commissioners court power to create its own civil process department.

Background and statutory framework

Article V, section 18 of the Texas Constitution provides that the commissioners court "shall exercise such powers and jurisdiction over all county business, as is conferred by this constitution and the laws of the State." Texas courts read that to mean the commissioners court may exercise only the powers the constitution and statutes expressly grant, together with implied powers reasonably necessary to carry out its express duties (Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948); Schope v. State, 647 S.W.2d 675 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd); Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941)).

On civil process, the office identified two duties the commissioners court holds. First, section 81.022(a) of the Local Government Code directs that the commissioners court "shall issue the notices, citations, writs, and process necessary for the proper execution of its powers and duties and the enforcement of its jurisdiction," and provides that such process must be in the name of the "State of Texas," directed to the sheriff or a constable, dated and signed officially by the clerk, and impressed with the court seal. Second, section 118.131(a) authorizes the commissioners court to designate reasonable fees for "services by the offices of the sheriff and constables."

Beyond those two roles, the office found no statutory authority, express or implied, for a commissioners court to establish a civil process department or to alter the manner in which process is accomplished. Instead, the sheriff has a statutory duty to execute processes directed to him by legal authority under section 85.021(a), and any failure to perform that duty could subject the sheriff to a fine or possible damages under section 85.021(b) and (c) (see also Attorney General Opinion H-595 (1975)). The office observed that while the sheriff is not vested with exclusive authority to serve process, the commissioners court is not authorized to participate in executing process; it may only issue it in certain very limited circumstances. The Texas Rules of Civil Procedure and other state statutes indicate that a sheriff or constable may serve process, and the Texas Rangers and officers of the highway patrol may do so when directed by a court of record.

Drawing those threads together, the office concluded the court lacked express or implied statutory authority to establish a civil process department, and it added that a commissioners court may not interfere with or usurp the duties and performance of independent county officials (Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961); see generally White v. Pickett, 355 S.W.2d 848 (Tex. Civ. App.-San Antonio 1962, writ ref'd n.r.e.)).

Common questions

Can a county commissioners court in Texas set up its own civil process department?
No. The Attorney General concluded that a commissioners court has no express or implied statutory authority to establish an office of civil process separate from the sheriff.

What is a commissioners court allowed to do with civil process?
Two things, according to the opinion: issue the notices, citations, writs, and process needed to carry out its own powers and duties (section 81.022(a) of the Local Government Code), and set reasonable fees for the services of the sheriff and constables (section 118.131(a)).

Who serves civil process in a Texas county?
The sheriff has a statutory duty to execute process directed to him, but the opinion noted he is not the exclusive server. A sheriff or constable may serve process, and the Texas Rangers and highway patrol officers may do so when a court of record directs them.

Can the commissioners court reorganize how the sheriff handles process?
No. The opinion said the court has no authority to alter the manner in which process is accomplished, and that a commissioners court may not interfere with or take over the duties of independent county officials such as the sheriff.

Citations

Constitutional and statutory provisions discussed:

• Tex. Const. art. V, § 18 (commissioners court's powers over county business)
• Local Gov't Code § 81.022(a) (commissioners court issues notices, citations, writs, and process)
• Local Gov't Code § 85.021(a), (b), (c) (sheriff's duty to execute process; consequences of failure)
• Local Gov't Code § 118.131(a) (commissioners court sets fees for sheriff and constable services)
• Texas Rules of Civil Procedure (service of process by sheriff or constable)

Cases discussed:

• Canales v. Laughlin, 214 S.W.2d 451 (Tex. 1948) (commissioners court's powers)
• Schope v. State, 647 S.W.2d 675 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd) (express and implied powers)
• Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941) (implied powers reasonably necessary)
• Pritchard & Abbott v. McKenna, 350 S.W.2d 333 (Tex. 1961) (commissioners court may not usurp duties of independent county officials)
• White v. Pickett, 355 S.W.2d 848 (Tex. Civ. App.-San Antonio 1962, writ ref'd n.r.e.)

Prior Attorney General opinions referenced: JM-449 (1986), H-595 (1975).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0273
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0273.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

December 10, 1993

Honorable Charles S. Brack
County Attorney
Chambers County
P.O. Box 1200
Anahuac, Texas 77514

Opinion No. DM-273

Re: Whether the Chambers County commissioners court has the authority to create a civil process department, separate and apart from control of the sheriff (RQ-505)

Dear Mr. Brack:

You advise that in July of 1992, the Chambers County commissioners court created a "Civil Process office." You suggest that this office performs all of the duties that the sheriff's office performed regarding civil process before the office was created, except the actual service of process, which is performed by the sheriff, his deputies, various constables and their deputies. The employee who occupies the office of civil process is also a deputy constable, who sometimes serves the papers she processes. You ask whether the court has the authority to create a civil process department that is independent of the control of the sheriff. We conclude that the court is lacking in such authority.

Article V, section 18 of the Texas Constitution provides that the commissioners court "shall exercise such powers and jurisdiction over all county business, as is conferred by this constitution and the laws of the State . . . ." Tex. Const. art. V, § 18; Canales v. Laughlin, 214 S.W.2d 451, 453 (Tex. 1948); Attorney General Opinion JM-449 (1986) at 1. The court may exercise only such powers as the Texas Constitution and statutes expressly grant, together with such other implied powers as are reasonably necessary to carry out its express duties. Schope v. State, 647 S.W.2d 675, 678 (Tex. App.-Houston [14th Dist.] 1982, writ ref'd); see Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941).

With regard to civil process, the commissioners court is vested with two duties. The first is contained in section 81.022(a) of the Local Government Code, which provides:

The commissioners court shall issue the notices, citations, writs, and process necessary for the proper execution of its powers and duties and the enforcement of its jurisdiction. A notice, citation, writ, or process must:

(1) be in the name of the "State of Texas";

(2) be directed to the sheriff or a constable of a county;

(3) be dated and signed officially by the clerk; and

(4) be impressed with the court seal.

Local Gov't Code § 81.022(a) (emphasis added). The second is found in section 118.131(a) of the code which vests the commissioners court with the authority to designate reasonable fees for "services by the offices of the sheriff and constables."

However, there is no statutory authority, express or implied, for a commissioners court to establish a civil process department or to alter the manner in which process is accomplished. Rather, the sheriff has a statutory duty to execute processes directed to him by legal authority. Id. § 85.021(a). Furthermore, any failure to perform this duty could subject the sheriff to a fine or possible damages. Id. § 85.021(b), (c); Attorney General Opinion H-595 (1975) (and authorities cited therein). We also note that while the sheriff is not vested with the exclusive authority to serve process, the court is not authorized to participate in the execution of process but only to issue it in certain very limited circumstances. The Texas Rules of Civil Procedure as well as other state statutes indicate that a sheriff or a constable may serve process. Additionally the Texas Rangers and officers of the highway patrol are vested with such authority when directed to do so by a court of record. Id.

Thus we conclude that the court does not have the express or implied statutory authority to establish a civil process department. Furthermore, a commissioners court may not interfere with or usurp the duties and performance of independent county officials. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333, 335 (Tex. 1961). See generally White v. Pickett, 355 S.W.2d 848, 849 (Tex. Civ. App.-San Antonio 1962, writ ref'd n.r.e.).

SUMMARY

The Commissioners Court of Chambers County does not have the express or implied statutory authority to establish an office of civil process.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Toya C. Cook
Assistant Attorney General

Footnote 1: The sheriff does not have exclusive authority to execute process. Id.