Could a Texas commissioners court create reasonable sheriff and constable service fees that did not exist before September 1, 1981?

Texas AG Opinion JM-193: Sheriff and Constable Fees

Plain-English summary

As issued in 1984, JM-193 concluded that commissioners courts could set reasonable fees for sheriff and constable services even when no fee for that service had been authorized before September 1, 1981.

"Commissioners courts may set fees for services performed by sheriffs and constables in accordance with article 3926a, V.T.C.S., even though no fee for the service was authorized prior to September 1, 1981."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

The opinion rejected the argument that the Texas Constitution required the legislature itself to set every such fee. It distinguished the historical "fees of office" retained by sheriffs as personal compensation from modern fees collected under a salary system.

"'Fees of office' for sheriffs in the sense used by article V, section 23 no longer exist."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

"Today, article V, section 23 of the Texas Constitution no more prohibits the delegation to commissioners courts of fee-setting power than it prohibits the delegation to them of power to set the salaries and perquisites for sheriffs."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

Subsequent treatment

The official Texas AG landing page identifies JM-193 as overruled in part by JM-880 in 1988.

"Overruled in part by JM-880 (1988)"
Source: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0193

JM-880 concluded that commissioners courts could not set fees for executing criminal warrants in misdemeanor or felony cases. It said JM-193 should not be followed to the extent it suggested otherwise.

"Commissioners courts may not set fees for the execution of criminal warrants by the sheriff or constable in either misdemeanor or felony cases."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0880.pdf

"To the extent that Attorney General Opinion JM-193 (1984) suggests otherwise, it should not be followed."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0880.pdf

The later opinion left the statute's application to civil matters unaffected.

"Its application to civil matters is unaffected."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0880.pdf

Currency note

This opinion was issued in 1984 and was overruled in part in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have further 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

What authority did article 3926a give county commissioners?

It allowed each commissioners court to set reasonable charges for services by sheriff and constable offices.

"The commissioners court of each county may set reasonable fees to be charged for services by the offices of sheriffs and constables."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

Could the fee exceed the cost of providing the service?

No. The statute capped a fee at the amount necessary to pay the expense of providing the service.

"A commissioners court may not set fees higher than is necessary to pay the expenses of providing the services."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

Could a county create a fee for a service that had no fee before September 1, 1981?

JM-193 originally answered yes.

"We have found no constitutional provisions or conflicting statutes that prevent a commissioners court from setting a fee for services performed by the offices of sheriffs and constables ... even though no fee for the service was authorized prior to September 1, 1981."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

Did setting a service fee amount to creating a new sheriff duty?

No. The opinion distinguished a fee for a service performed in discharging an existing duty from a legal command requiring the sheriff to perform a new duty.

"The setting of a fee for a service, if such a service is performed in the discharge of a sheriff's duties, is not the equivalent of requiring that the service be performed, or a prescription of the sheriff's duties."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

What part of JM-193 remained after JM-880?

JM-880 expressly left civil matters unaffected while rejecting county-set criminal-warrant fees.

"Its application to civil matters is unaffected."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0880.pdf

Background and statutory framework

The request asked whether a commissioners court could set a fee for a service that carried no authorized fee before article 3926a took effect on September 1, 1981.

"You have requested our opinion as to whether a commissioners court may set a fee for a service for which no fee was authorized prior to September 1, 1981, the effective date of article 3926a, V.T.C.S."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

JM-193 explained that article XVI, section 61 had abolished the fee system for compensating sheriffs and required county commissioners courts to compensate them on a salary basis.

"It abolished the fee system for compensating sheriffs; the commissioners courts of all counties are now required to compensate such officers on a salary basis."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

The opinion treated service fees as distinct from personal compensation retained by an officer.

"The intent of the constitutional provision was that the legislature itself should specify the fees a sheriff might collect and retain as his personal compensation."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

Citations and references

• Article 3926a supplied the county fee-setting authority interpreted in JM-193.

"Article 3926a, V.T.C.S., delegates to the commissioners court power to 'set reasonable fees to be charged for services by the offices of sheriffs and constables.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

• Article V, section 23 supplied the constitutional argument about sheriff fees of office.

"Article V, section 23 of the Texas Constitution ... provides for the election of a sheriff 'whose duties and perquisites, and fees of office, shall be prescribed by the Legislature.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0193
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0193.pdf
• Subsequent treatment PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0880.pdf

Original opinion text

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

.
-. :-

The Attorney General of Texas

JIM MATTOX
lugust 20, 1984
Attorney General

Supreme      Court Building              Honorable Margaret    Ifoore              Opinion No. JM-193

P. 0. BOX 12546
Travis County Atto:rlley
Austin. TX. 76711. 2546
512/475-2501
P. 0. Box 1748
Re: Whether a commissioners
Telex 9101674-1367 Austin, Texas 78.'117 court may authorize certain
Telecopier 512,475.0266
fees under article 3926a,
V.T.C.S.
714 Jackson. Suite 700
Dallas. TX. 75202.4506
Dear Ms. Moore:
214,742.6944
You have reqwsted our opinion as to whether a commissioners court may set a fee for a service for which no fee was authorized 4624 Alberta Ave., Suite 160
Et Paso. TX. 79905-2793 prior to September 1, 1981, the effective date of article 3926a,
Q15/533-3464
V.T.C.S. That ntaulte provides:

(a) :lhecommissioners court of each county may
,&ylOl Texas, Suite 700 set reasonable fees to be charged for services by
ouston. TX. 77002-3111 the offiws of sheriffs and constables.
1131223-5666

(b) 11 commissioners court may not set fees
606 Broadway, Suite 312 higher tnsn is necessary to pay the expenses of
Lubbock. TX. 79401-3479
providing:the services.
6OW747-5236

Initially, we note the suggestion that article 3926a, insofar
4309 N. Tenth, Suite S
it affects sherifffi,is in conflict with article V, section 23 of the
McAlten, TX. 76501.1665
Texas Constitution, which provides for the election of a sheriff
5121662.4547
"whose duties and Iwrquisites, and fees of office, shall be prescribed
by the Legislature . . . ." (Emphasis added). Cf. Tex. Const. art.
200 Main Plaza, Suite 400
V, 520 (county ckclr). It is argued that the legislature itself, not
San Antonio, TX. 76205.2797 a commissioners cwlrt, must set s fees charged for a sheriff's
5121225-4191
services.

An Equal Opportunity/
We begin by r,oting that constitutional provisions are to Affirmative Action Employer construed in the :.:.ghtof conditions existing at the time of their adoption, Director cf the Department of Agriculture and Environment Printing IndustriezFAssociation of Texas. 600 S.W.Zd 264 (Tex. 19801, that a constitutional meanine fixed won its adootion is never different at a subsequent time, Jones v.'Ross, 173 S:k'.2d1022 (Tex.
1943); Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1942), and that the readoption of a prcwision, using the same language, is presumed have been done wi.:h a purpose not to change the law. See Cox Robison, 15G S.W. 1149 (Tex. 1912). Except for a changein 1954

_,
, .

IlonornhleMargaret Moore - :?age2 (JM-193)

making a sheriff's term o:i office four years rather than two, the language of article V, se:rion 23 has been the same since it was adopted as an original part ,,fthe constitution in 1876.

In 1876, the phrase "fees of office," in the context of its article V. section 23 use, neant "the reward or compensation or wages allowed bv law to an officer for services Derformed by him in the discharge-of his official &ties." City of Austin v. Johns, 62 Tex. 179 (1884). See also __ Veltnan v. Slator, 217 S.W. 378 (Tex. 1919); State v. Moore, 57 Tex. 307 (1882). The i~ntentof the constitutional provision was that the legislature itself should specify the fees a sheriff might collect and retain as his personal compensation. The purpose was undoubtedly to prevent any sheriff from exacting tribute, in the form of fees, to enri,:hhimself. _Cf. Tarrant County v. Butler, 80 S.W. 656 (Tex. Civ. App. 1904, no writ) (as to county clerk).

The meaning of article V, section 23 remains the same today, but no longer do sheriffs rz:ain collected fees as their personal compensation. Article XVI, section 61 was added to tha constitution in 1935, amended in 1948, alsiamended again in 1972. It abolished the fee system for compensating sheriffs; the commissioners courts of all counties are now required IO compensate such officers on a salary basis. See Wichita County Y. Robinson, 276 S.W.2d 509 (Tex. 1954); Srttegast v. Harris County,-L59 S.W.2d 543 (Tex. Civ. App. - Galveston 1942, writ ref'd). Fees set by the legislature were not abrogated by the new provision, but the! purpose to which they could be put was changed. Banks v. State, :I62 S.W.2d 154 (Tex. Civ. App. - Austin 1962, writ ref'd); State v,--3 Glass 167 S.W.2d 296 (Tex. Civ. App. -
Galveston 1942). writ ref'tiw.0.m. per curism, 170 S.W.2d 470 (Tex. 1943).

"Fees of office" for sheriffs in the sense used by article V, section 23 no longer exist. The danger which that provision was designed to control by direct legislative oversight (and the only subject matter on which it s:ts) has been constitutionally eliminated. Today, article V, sectior 23 of the Texas Constitution no more prohibits the delegation tc commissioners courts of fee-setting power than it prohibits the delegation to them of power to set the salaries and perquisites for she:r::ffs. See V.T.C.S. art. 3912k. Cf. Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex. Civ. App. - Amarillo 1971, -grit ref'd n.r.e.). Accordingly, we turn to an examination of the ststute itself.

Article 3926a, V.T.C.S., delegates to the commissioners court power to "set reasonable iers to be charged for services by the offices of sheriffs and coIlstables." (Emphasis added). Insofar as sheriffs are concerned, sxtion 23 of article V of the Texas Constitution specifies th;,t the duties of the sheriff are to be prescribed by the 1egisLsture (a task -not delegated to the

Honorable Margaret Moore - Page 3 (JM-193)

A

commissioners court), but a description of duties to be discharged by a sheriff need not, and us.l.311~does not, describe all the services that might be performed in 1:hedischarge of those duties. Starr v.
Board of Commissioners of Lelaware County, 79 N.E. 390 (Ind. App.
1906).

The services a sheriff officially performs are merely actions that further the discharge .)f his duties (deeds that are useful or instrumental in achieving-that object). See Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex. 1962). Thesetting of a fee for a service, if such a servic? is performed in the discharge of a sheriff’sxties, is not the equivalent of requiring that the service be performed, or a prescription of the sheriff’s duties. The fixing of fees for a sheriff’s serItces, whether or not a fee was previously charged for them, is entirely compatible with the prescription of a sheriff’s duties by the leg:.r;lature.

We have found no ccnstitutional provisions or conflicting statutes that prevent a ccnmissioners court from setting a fee for services performed by the offices of sheriffs and constables in accordance with article 39:!Oa,V.T.C.S., even though no fee for the service was authorized prier to September 1, 1981. We conclude that commissioners courts may se: such fees.

SUMMARY

Commissioners c5urts may set fees for services performed by sheriffs and constables in accordance with article 3926z, V.T.C.S., even though no fee for the service ws authorized prior to September 1, 1981.

J /kVery truly yours

JIM
A
MAT TOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Bruce Youngblocd
Assistant Attorney General

P. 845

Honorable Margfiret Moore - Eage 4 (JM-193)

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood

p. 846