Could a Harris County constable charge the Industrial Accident Board for serving subpoenas issued for administrative hearings?
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This page answers the general question as of 1983. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-51: Constable Fees for Administrative Subpoenas
Plain-English summary
JM-51 concluded that a Harris County constable could charge the Industrial Accident Board for serving subpoenas issued in administrative hearings if the Harris County Commissioners Court authorized the charge.
"[W]e must conclude that a Harris County constable is now entitled to charge the Industrial Accident Board fees for serving subpoenas issued by the board, provided the commissioners court of Harris County so authorizes."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
The answer changed because the legislature repealed the former fee schedule, which listed charges for small-claims, justice, and other courts, and replaced it with authority for each commissioners court to set reasonable sheriff and constable fees.
"Article 3933a was repealed in 1981."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf"The commissioners court of each county may set reasonable fees to be charged by the offices of sheriffs and constables."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
The fee could not exceed the expense of providing the service. JM-51 overruled Attorney General Opinion MW-209 to the extent of conflict.
"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/1983/jm0051.pdf"Attorney General Opinion MW-209 is overruled to the extent of conflict."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
Currency note
This opinion was issued in 1983. 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
Could the Industrial Accident Board issue subpoenas?
Yes. The board or any member had statutory subpoena authority.
"The board or any member is authorized to subpoena witnesses."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
Could a constable serve the board's subpoena?
Yes. Constables were empowered to execute and return process directed to them by a lawful officer.
"[C]onstables are empowered to 'execute and return . . . all process, warrants and precepts' directed to them 'by any lawful officer.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
Why had MW-209 denied a fee?
The former statute set service fees by court category. Because an administrative agency was not a court and fee statutes were strictly construed, the earlier opinion found no implied fee authority.
"That opinion was based on article 3933a, V.T.C.S., which established a fee schedule for sheriffs and constables."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf"The opinion reasoned that, since it had been consistently held that an administrative agency is not a 'court,' and since statutes are strictly construed against allowing a fee by implication, a sheriff or constable was not entitled to a fee for serving subpoenas issued by the board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
What did the former schedule charge?
It set $5 for small-claims courts, $8 for justice courts, and $10 for all other courts for each served person or entity, including mileage.
"For each person, corporation or legal entity on whom service of citation, subpoena, summons, or process not otherwise provided for, is performed or attempted and return made, including mileage, if any, a fee of: (a) Small Claims Courts $5.00; (b) Justice Courts $8.00; (c) All other Courts $10.00."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
Who had to authorize the new fee?
The county commissioners court.
"[A] Harris County constable is now entitled to charge the Industrial Accident Board fees for serving subpoenas issued by the board, provided the commissioners court of Harris County so authorizes."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
How high could the fee be?
No higher than necessary to cover 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/1983/jm0051.pdf
Background and statutory framework
The Harris County Attorney asked whether a constable could charge the Industrial Accident Board for serving administrative-hearing subpoenas.
"You have requested our opinion as to whether a constable may 'charge the Industrial Accident Board fees for serving subpoenas issued by the board in connection with its administrative hearings.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
Article 3926a replaced the repealed fixed schedule with local authority to set reasonable service fees.
"In view of the repeal of article 3933a and the enactment of article 3926a to allow a commissioners court to set 'reasonable fees . . . for services by the offices of sheriffs and constables,' we must conclude [the fee is authorized subject to commissioners-court approval]."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
Holding
"Pursuant to article 3926a, V.T.C.S., and the repeal of article 3933a, V.T.C.S., a Harris County constable is entitled to charge the Industrial Accident Board fees for serving subpoenas issued by the board, provided the commissioners court of Harris County so authorizes."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.pdf
Citations and references
Statutes discussed by JM-51:
- "article 8307, section 4, V.T.C.S." Official PDF
- "article 6885, V.T.C.S." Official PDF
- "former article 3933a, V.T.C.S." Official PDF
- "Acts 1981, 67th Legislature, chapter 379, section 2(b), at 1001" Official PDF
- "article 3926a, V.T.C.S." Official PDF
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0051
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1983/jm0051.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
Attorney General
July 29, 1983
Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002
Opinion No. JM-51
Re: Whether a constable may charge the Industrial Accident Board fees for serving subpoenas issued in connection with administrative hearings
Dear Mr. Driscoll:
You have requested our opinion as to whether a constable may "charge the Industrial Accident Board fees for serving subpoenas issued by the board in connection with its administrative hearings."
The board or any member is authorized to subpoena witnesses, article 8307, section 4, V.T.C.S., and constables are empowered to "execute and return . . . all process, warrants and precepts" directed to them "by any lawful officer," article 6885, V.T.C.S.
In Attorney General Opinion MW-209 (1980), this office held that sheriffs and constables are not entitled to receive fees from the Industrial Accident Board for serving subpoenas issued by the board. That opinion was based on article 3933a, V.T.C.S., which established a fee schedule for sheriffs and constables and provided, in pertinent part:
For each person, corporation or legal entity on whom service of citation, subpoena, summons, or process not otherwise provided for, is performed or attempted and return made, including mileage, if any, a fee of:
(a) Small Claims Courts $5.00
(b) Justice Courts $8.00
(c) All other Courts $10.00
The opinion reasoned that, since it had been consistently held that an administrative agency is not a "court," and since statutes are strictly construed against allowing a fee by implication, a sheriff or constable was not entitled to a fee for serving subpoenas issued by the board.
Article 3933a was repealed in 1981. Acts 1981, 67th Leg., ch. 379, at 1001, §2(b). Article 3926a, V.T.C.S., now provides:
(a) The commissioners court of each county may set reasonable fees to be charged by the offices of sheriffs and constables.
(b) A commissioners court may not set fees higher than is necessary to pay the expenses of providing the services.
In view of the repeal of article 3933a and the enactment of article 3926a to allow a commissioners court to set "reasonable fees . . . for services by the offices of sheriffs and constables," we must conclude that a Harris County constable is now entitled to charge the Industrial Accident Board fees for serving subpoenas issued by the board, provided the commissioners court of Harris County so authorizes. Attorney General Opinion MW-209 is overruled to the extent of conflict.
SUMMARY
Pursuant to article 3926a, V.T.C.S., and the repeal of article 3933a, V.T.C.S., a Harris County constable is entitled to charge the Industrial Accident Board fees for serving subpoenas issued by the board, provided the commissioners court of Harris County so authorizes.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
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