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I have an out of county constable trying to charge my office $100 to serve a criminal subpoena. I am struggling to put my hands on the authority to charge such a fee. Can someone point me to their authority? Is this happening to any other prosecutors?
 
Posts: 156 | Location: Texas, USA | Registered: July 11, 2001Reply With QuoteReport This Post
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Perhaps the constable relies on TRCP 126 (which is inapplicable).

Your subpoena was presumably issued under art. 24.16, CCP. It may not be of any help, because it dealt with need for a defendant to prepay for serving a subpoena, but this broad language appears in Smith, 661 S.W.2d at 154: "Chapter 24 of the Texas Code of Criminal Procedure deals with the issuance of subpoenas. No subpoena fee is authorized." Notably, art. 24.17 contains no reference to payment or collection of any fee.

It also seems questionable whether a fee of $100 can be charged. The amount of "reimbursement" for such service is limited to $5 in art. 102.011(a)(3). Of further interest, in certain cases, the officer serving the subpoena is required to advance funds to the witness. See art. 24.18. The fact that "reimbursement" is spoken of implies that no payment has yet been received. In Allen, 2019 Tex. Crim. App. LEXIS 1172, the CCA spoke of recoupment of "law-enforcement expenses incurred in serving and summoning witnesses for the defendant's prosecution."

Possibly, the constable may have a duty to explain the basis for any particular entry in his "fee record" under art. 103.009.

Tex. Att'y Gen. Op. M-619 also makes clear that "The statutes prescribing fees for public officers are strictly construed and the right of a public officer to charge a "fee" for his services may not rest in implication, but must be expressly conferred by law and unless a statute clearly fixes the amount of fee to which he is entitled, no officials fee may be charged."

This message has been edited. Last edited by: Martin Peterson,
 
Posts: 2356 | Registered: February 07, 2001Reply With QuoteReport This Post
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