Opinion No. (1980) ( 1980 )

Dear Director Rader,

The Attorney General's office is in receipt of your letter wherein you request, in effect, an official opinion for the following question:

What entity bears the cost for attorneys fees in an involuntaryproceeding commenced pursuant to 43A O.S. 801[43A-801] et seq. (1977),where the court deems the individual indigent and appoints counsel?

Title 43A O.S. 808(c) (1977) is relevant to your inquiry and provides in part:

"The elderly . . . if he or she is indigent or in the determination of the court, lacks capacity to waive the right to counsel, the court shall appoint counsel. If the elderly person is indigent, the cost of representation by counsel shall be borne by the state."

The concern voiced in your letter centers on the interpretation of the term "state" as used in the provision. A careful reading of the entire statute reveals that the legislature went to great measures to define the term "department". No such effort was made regarding the term "state" and therefore the conclusion is that the term was to be given its ordinary and common meaning. Further, a fundamental rule of law is that a state agency is only authorized to do that which it is, by law, empowered to do. Duncan v. Askew, 207 Okla. 542, 251 P.2d 515 (1952). There is no express provision in the Act which empowers the Department to pay attorneys fee for court-appointed counsel.

Attorneys fees are expenses authorized to be paid from the district court fund where counsel has been appointed. 20 Ohio St. 1301[20-1301] et seq. (1971). Although the reported cases involve payment of attorneys fees in the area of criminal law, there is no language in the section which prohibits the payment of attorneys fees in special proceedings as in the instance where the court is authorized to appoint counsel and no specific fund is directed to be used.

It is, therefore, the official opinion of the Attorney Generalthat where a court, pursuant to 43A O.S. 808(c) (1977), appointscounsel for persons against whom involuntary proceedings have beencommenced, payment of attorneys fees shall be paid by the districtcourt fund in the county where the proceedings are held.

JAN ERIC CARTWRIGHT, ATTORNEY GENERAL OF OKLAHOMA

RONALD LEE JOHNSON, ASSISTANT ATTORNEY GENERAL