Texas Attorney General Opinion: JC-56 Page: 2 of 3
This text is part of the collection entitled: Texas Attorney General Opinions and was provided to The Portal to Texas History by the UNT Libraries Government Documents Department.
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The Honorable William C. "Bill" Sowder - Page 2 (JC-0056)
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 . . . , constabless 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
...V. 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.
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JC-56, text, May 26, 1999; (https://texashistory.unt.edu/ark:/67531/metapth274365/m1/2/?q=%221999%22: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.