Texas Attorney General Opinion: MW-117 Page: 2 of 3
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- Page Two (MW-117)
which he received them, the manner in which he executed them,
and the time and place the process was served as well as the
distance actually travelled in serving such process, and shall sign
the returns officially.
(Emphasis addec). The fifth edition of Black's Law Dictionary defines a precept as an
order, writ, warrant, or process. An order or direction, emanating
from authority, to an officer or body of officers, commanding him
or them to do some act within the scope of their powers An order
in writing, sent out by a justice of the peace or other like officer,
for the bringing of a person or record before him. Precept is not to
be confined to civil proceedings, and is not of a more restricted
meaning than 'process'. .
Id. at 1059. See also Ackermann v. Berriman, 114 N.Y.S. 937 (City Ct. of N.Y. 1908); 72
C.J.S. at 477.
We believe that the fee to be charged for the service or execution of a precept
depends on the purpose and function of the order as reflected in the body of the document.
We therefore turn to the forms used in Harris County. One form, a "precept to serve,"
commands any constable or sheriff to serve a motion for contempt and directs the person
served to appear before court to show cause. Another form commands the peace officer
to serve the party "with accompanying certified copy of ." A third form requires
service of a certified copy of a petition under the Uniform Reciprocal Enforcement of
Support Act and directs that party to appear and show cause in accordance with a
certified copy of the court order attached thereto. A similar form commands service of
Plaintiffs Original Petition, together with the judge's order thereon, and that the party
appear and show cause.
It is our opinion that precept forms are "process not otherwise provided for" and the
fee to be received is ten dollars. They merely call for the service of a document on a
person and require no more effort than the service of a citation, summons, or subpoena
unlike the execution of the writs for which a twelve dollar fee is allowed. The execution
of all of the writs specified in article 3933a are governed by the rules relating to ancillary
proceedngs. Tex. R. Civ. Proc. 592 - 736. The execution of these writs requires greater
effort than the mere service of process. They generally call for prompt action by the
constable or sheriff requiring the seizure of property. The rules provide that the plaintiff
must file a surety bond and they allow the defendant to replevy the property by likewise
posting a bond Sale by public auction may be conducted by the sheriff or constable when
so ordered. Therefore, it is our opinion that under the doctrine of "ejusdem generis" the
precepts described in this opinion lie in the category of "process not otherwise provided
for" and require a fee of ten dollars.
SUMMARY
The fee for service of a precept, as described, in county and
district court is ten dollars.P. 370
Honorable Joe Resweber
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Texas. Attorney-General's Office. Texas Attorney General Opinion: MW-117, text, December 27, 1979; (https://texashistory.unt.edu/ark:/67531/metapth271962/m1/2/?q=%22White%2CMark%22: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.