By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Attorney General says constable may be
required to serve process in truancy cases (99-3-36)
On May 26, 1999, the Texas Attorney General opined that a constable, when
ordered by a Justice of the Peace, is required to serve process in a failure to
appear for a truancy hearing case even in a county in which the applicable
independent school district has selected an attendance officer. The attendance
officer may also serve process in such cases, but his or her power to do so is
not exclusive of the constable.
99-3-36. Opinion Attorney General No. JC-0056, 1999 WL 387123, 1999 Tx.Ag.Lexis
___ (5/26/99)[Texas Juvenile Law (4th Edition 1996)].
Re: Whether a constable may execute service of process to enforce the compulsory
school attendance provisions of the Education Code (RQ-1147)
The Honorable William C. "Bill" Sowder
Criminal District Attorney
Lubbock County Courthouse
P. O. Box 10536
Lubbock, Texas 79408-3536
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.
Yours very truly,
John Cornyn
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