Can a Texas constable serve legal process in a school truancy case, or only the attendance officer?

Texas AG Opinion JC-0056: A Constable May Serve Truancy Process

Plain-English summary

The Lubbock County Criminal District Attorney asked whether a constable could be required to serve legal process on individuals who failed to appear at a truancy hearing, or whether section 25.091 of the Education Code, which empowers school attendance officers to serve such process, made that the attendance officer's exclusive job. The local constables had argued they could not lawfully serve these summonses because the Education Code put the power and duty on the attendance officer.

The opinion concluded constables may serve the process and, when directed by a court, must. In a county or school district that has selected a school attendance officer, that officer has the express power and duty to investigate unexcused absences, administer oaths, serve legal process, and enforce the compulsory attendance law (section 25.091). But the grant is not exclusive. Section 25.096 says that "[i]n addition to enforcement by a school attendance officer," the compulsory attendance provisions "may be enforced by any peace officer," and constables and deputy constables are peace officers under article 2.12 of the Code of Criminal Procedure. Reading sections 25.091 and 25.096 together, the opinion gave authority to attendance officers and to any other peace officers, including constables, to serve process enforcing the attendance law when a court directs them to. The opinion also held that constables have no discretion to refuse process directed to them by a magistrate of competent jurisdiction. Constables have broad authority to serve legal process under Local Government Code section 86.021, "shall execute and return" each process delivered by a lawful officer, and may be "fined for contempt" if they fail or refuse (section 86.024(a)). The opinion also quoted Merritt v. Harris County, describing constables as officers of the court who carry out a duty prescribed by the constitution or the legislature and do not define the objectives of a writ.

Currency note

This opinion was issued in 1999. 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

Can only a school attendance officer serve process in a truancy case?
No. The opinion read section 25.091 as a non-exclusive grant. Section 25.096 lets "any peace officer" enforce the compulsory attendance law, and constables are peace officers, so a constable may serve the process too.

Does a constable have to serve the process if a justice of the peace orders it?
Yes. The opinion concluded a constable has no discretion to refuse process directed to him by a magistrate. Local Government Code section 86.021 says a constable "shall execute and return" each process delivered by a lawful officer, and refusing exposes the constable to a contempt fine under section 86.024(a).

Who normally serves truancy process in a county that has an attendance officer?
The school attendance officer would generally serve it, the opinion said, but a constable may also serve it if directed to do so by a lawful officer such as a justice of the peace.

Background and statutory framework

In a county or independent school district that has selected a school attendance officer, section 25.091(a) of the Education Code gives that officer the power and duty to investigate each unexcused absence, administer oaths and serve legal process, and enforce the compulsory school attendance law. Section 25.096 provides that, in addition to enforcement by a school attendance officer, the compulsory attendance provisions may be enforced by any peace officer as defined by article 2.12 of the Code of Criminal Procedure, which includes constables and deputy constables. Local Government Code section 86.021 gives constables broad authority to serve legal process and directs 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." Under section 86.024(a), a constable who fails or refuses is subject to a contempt fine. The opinion relied on Merritt v. Harris County for the principle that constables, in executing writs, carry out a duty prescribed by the constitution or the legislature and have only a limited range of discretion.

Citations

Statutory provisions:

• Tex. Educ. Code Ann. § 25.091(a)(1), (2), (3) (Vernon 1996); § 25.096
• Tex. Code Crim. Proc. art. 2.12 (Vernon Supp. 1999)
• Tex. Local Gov't Code Ann. § 86.021 (Vernon 1998 & Supp. 1999); § 86.024(a) (Vernon 1988)

Cases:

• Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.-Houston [14th Dist.] 1989, writ denied)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0056
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0056.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
JOHN CORNYN

May 26, 1999

The Honorable William C. "Bill" Sowder
Criminal District Attorney
Lubbock County Courthouse
P. O. Box 10536
Lubbock, Texas 79408-3536

Opinion No. JC-0056

Re: Whether a constable may execute service of process to enforce the compulsory school attendance provisions of the Education Code (RQ-1147)

Dear Mr. Sowder:

You ask whether a constable may be required to serve legal process on individuals who fail to appear at a truancy hearing. You specifically ask whether section 25.091 of the Texas Education Code, which grants school attendance officers the power and duty to serve legal process, means that only an attendance officer may serve legal process dealing with the compulsory attendance provisions of the Education Code, thus making it unlawful for a constable to serve the same. You say that the constables have argued that they may not legally serve these summons since the Education Code places the power and duty on the attendance officer. In our view, constables, when directed to do so by a lawful officer such as a justice of the peace, may also serve legal process on a person who fails to appear at a truancy hearing. Further, constables do not have discretion to determine what process they will serve, when such service has been ordered by a lawful magistrate.

In a county or independent school district that has selected a school attendance officer, the attendance officer has the express power and duty to investigate each case of unexcused absence from school, to administer oaths and serve legal process, and to enforce the compulsory school attendance law. TEX. EDUC. CODE ANN. § 25.091(a)(1), (2), (3) (Vernon 1996). However, the Education Code provides that "[i]n addition to enforcement by a school attendance officer, the compulsory attendance provisions of this subchapter may be enforced by any peace officer, as defined by Article 2.12, Code of Criminal Procedure." Id. § 25.096. Constables and deputy constables are peace officers. TEX. CODE CRIM. PROC. art. 2.12 (Vernon Supp. 1999). Given these provisions, the question is whether section 25.091 confers an exclusive grant of authority to serve legal process in truancy matters to the attendance officer alone.

The grant of authority to attendance officers is not exclusive. No language restricting the power to serve process in these matters to attendance officers is to be found in section 25.091, and section 25.096's provision that "any peace officer" may enforce the attendance law provides strong evidence to the contrary. Sections 25.091 and 25.096 may be harmonized by reading them together to provide authority to attendance officers and to any other peace officers (in which category constables are included) to serve process designed to enforce the compulsory attendance law when such peace officers are directed by the court to do so.

Moreover, in our view, constables do not have the discretion to decide for themselves that they will not serve process when directed by a magistrate of competent jurisdiction to do so. Constables have broad authority to serve legal process. TEX. LOCAL GOV'T CODE ANN. § 86.021 (Vernon 1998 & Supp. 1999). Indeed, 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." Id. A constable who "fails or refuses to execute and return according to law a process, warrant, or precept" directed to him by the court is subject to being "fined for contempt before the court that issued the process, warrant, or precept on the motion of the person injured by the failure or refusal." Id. § 86.024(a) (Vernon 1988).

Given these provisions, it is our opinion that constables do not have discretion to refuse to serve process directed to them by a justice of the peace. In Merritt v. Harris County, 775 S.W.2d 17 (Tex. App.-Houston [14th Dist.] 1989, writ denied), the court addressed the discretion of constables as follows:

In executing writs . . . [c]onstables carry out a duty prescribed by the Texas [C]onstitution or the legislature. As an officer of the Court, they do not have the authority to define objectives in the execution of the court's writ. Under Texas law, [c]onstables are not policymaking officials of county government when performing their narrowly circumscribed duty to execute a writ . . . Even though they are elected officials, they do not hold full sway over the tasks entrusted to them so as to constitute official policy making authority. Though they possess a limited range of discretion in executing a writ, their power to make and enforce policy in this area is constrained by the courts, the constitution, and the legislature. They are not given that range of discretion or choice that is at the core of the power to impose one's chosen policy for they do not define the objectives of a writ.

Id. at 24.

We conclude that a constable may, pursuant to the provisions of Education Code section 25.096, serve process on an individual who has failed to appear at a truancy hearing. Although a school attendance officer, pursuant to Education Code section 25.091, would generally serve process in a truancy hearing case in a county that has selected a school attendance officer, a constable may also serve the process if directed to do so by a lawful officer.

SUMMARY

A constable may serve legal process on an individual failing to appear at a truancy hearing. Even though this duty would generally be performed by the school attendance officer in those counties that have selected a school attendance officer, it is lawful for a constable to serve any legal process addressing the compulsory attendance provisions of the Education Code.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by James E. Tourtelott
Assistant Attorney General