Untitled Texas Attorney General Opinion ( 1990 )

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October 16, 1990
Honorable Mike Driscoll Opinion No. ~~-1234
Harris County Attorney
1001 Preston, Suite 634 Re: Authority of a county clerk
Houston, Texas 77002 to collect a fee upon filing of
an application for emergency de-
tention or court-ordered services
in cases involving mental com-
petency or chemical dependency,
and related questions (RQ-2004)
Dear Mr. Driscoll:
You ask the following question:
What fee(s), if any, is the County Clerk
authorized to collect upon the submission or
filing of an application for emergency deten-
tion or court-ordered services in cases
involving mental competency, chemical depen-
dency or drug dependency?
We will first address your question in regard to emer-
gency detention of mentally ill persons. Any adult person
may apply for emergency detention of another person upon a
showing that the applicant has reason to believe that the
subject of the application is mentally ill and that he or
she poses an imminent risk of serious harm to himself or
others. V.T.C.S. art. 5547-28. Such an application is to
be presented to a magistrate, not to the county clerk. Id.
art. 5547-28, 5 Cc)* An application for court-ordered
mental health services is to be filed with the appropriate
county clerk. Id. art. 5547-32, 5 (a).
Section 118.052 of the Local Government Code sets out a
fee schedule for clerks of county courts. The fee to be
charged for "mental health services" is $40. It is not
clear, however, who is responsible for the $40 fee. To
answer that question, it is necessary to examine the lan-
guage and history of section 118.055(c) of the Local Govern-
ment Code.
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Honorable Mike Driscoll - Page 2 (JM-1234)
Section 118.055(c) of the Local Government Code pro-
vides that the $40 fee for mental health services is for the
services listed in articles 5547-13, 5547-14, and 5547-15,
V.T.C.S. The substance of section 118.055(c) was first
adopted in 1967 as part of an act setting out fees to be
charged by county clerks and clerks of county courts.1 Acts
1967, 60th Leg., ch. 600, at 1785. That act stated that
articles 5547-13, 5547-14, and 5547-15 were repealed to the
extent that they were in conflict with the new act. A 1967
opinion of this office concluded that the repealer was
ineffective because the caption to the bill did not meet
constitutional requirements. Attorney General Opinion M-135
(1967). In 1977 this office concluded that whatever the
case may have been in 1967, a 1977 amendment of the fee
statute validated the language stating that articles 5547-13
through 5547-15 were repealed to the extent of conflict with
the fee statute. Attorney General Opinion H-1097 (1977).
The repealing language in the fee statute is trouble-
some since neither the county clerk nor the fees of the
county clerk are specifically mentioned in articles 5547-13,
5547-14, or 5547-15. Article 5547-13 provided that the
county or district attorney was to represent the state in
hearings on court-ordered mental health services. Article
5547-14 stated that counties were to pay for certain mental
health proceedings and that those counties were entitled to
reimbursement. Article 5547-15 provided that appointed
attorneys and physicians were entitled to reasonable compen-
sation, which was to be taxed as costs in the case.
In any case, Attorney General Opinion H-1097 considered
the combined effect of the portion of the fee statute
1. The constitution provides that the county clerk is
the clerk for the constitutional county court. Tex. Const.
art. V, 5 20. Section 25.0010(b) of the Government Code
states that the county clerk shall serve as clerk of each
statutory county court. See also Gov't Code gg 25.1032(j)
(Harris County Clerk shall keep separate docket for each
county civil court at law), 25.1033(l) (district clerk
serves as clerk for Harris County criminal courts at law),
25.1034 (Harris County Clerk shall keep separate docket for
Harris County statutory probate courts). Consequently, we
will use the term "county clerk" in this opinion to describe
the Harris County Clerk in all of her roles.
p. 6566
Honorable Mike Driscoll - Page 3 (JM-1234)
regarding mental health services and articles 5547-13,
5547-14, and 5547-15, and concluded:
[The fee provision] sets the clerk's fee
in 'each original cause or action in a
Probate Court . . . due and payable and to be
paid by the party . . . initiating said
cause . . . .I In an action involving a
mentally ill person, the clerk's total fee
for services in connection with proceeding
under articles 5547-13 through 5547-15 is set
at $40.00. . . . [The fee statute] thus
limits the amount that may be charged for
filing a petition, issuing notices, adminis-
tering oaths, and performing all other
clerical duties in connection with the kinds
of commitment listed in article 5547-14. If
the county judge allows compensation to an
appointed attorney or physician under article
5547-15, it is taxed as costs in the case,
and the clerk has certain duties with respect
to collecting it. . . . [The fee statute]
does not attempt to repeal the provisions of
the Mental Health Code regarding payment of
attorneys* fees, physicians' fees, and tran-
sportation costs. Since these fees are not
paid to the clerk, they are unaffected by
[the fee statute].
See also Attorney General Opinion M-135 (1967). In other
words, Attorney General Opinion H-1097 determined that any
services of the county clerk in regard to mental health
proceedings, including the filing of an application, were to
be considered services listed in articles 5547-13 through
5547-15 and that the total fee for any such services was to
be $40.
It is significant that Attorney General Opinion H-1097
did not conclude that the fee statute had repealed any
specific language of articles 5547-13 through 5547-15. If
Attorney General Opinion H-1097 had concluded that specific
portions of articles 5547-13 through 5547-15 had been
repealed, we would have to consider whether any such por-
tions had been revived, since articles 5547-13 through
5547-15 were revised and reenacted in 1983 as part of a
substantive revision of the mental health statutes. Acts
1983, 68th Leg., ch. 47, § 1, at 211 (eff. Sept. 1, 1983).
Fortunately, we have been spared that effort. Because
nothing in the 1983 revisions calls the conclusion of
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Honorable Mike Driscoll - Page 4 (JM-1234)
Attorney General Opinion H-1097 into question, those conclu-
sions remain valid.
Although Attorney General Opinion H-1097 determined
what services the $40 fee covered, it did not determine from
whom the $40 fee was to be collected. Although the history
and language of the relevant statutes create some confusion
on this issue, we conclude that the county clerk is not to
collect a fee from the person who submits an application for
emergency detention or court-ordered treatment, but that the
county may seek reimbursement from the patient for the
services of the,county clerk in such matters.
Because no services of the county clerk were actually
mentioned in articles 5547-13 through 5547-15, Attorney
General Opinion H-1097 had to be saying that the $40 covered
services of the county clerk in connection with proceedings
mentioned in those provisions. It happens that article
5547-14 provides that the county is to bear the cost of
mental health proceedings. Because Attorney General Opinion
H-1097 viewed the services of the county clerk as part of
the mental health proceedings for purposes of the fee
statute, it is consistent to interpret the provision that
the county bear the cost of such proceedings to mean that
the county is to bear the cost of the clerk's services. We
conclude, therefore, that under article 5547-14 the county
is to bear the costs of the services of the county clerk in
regard to mental health proceedings. m V.T.C.S. art.
5547-14, 5 (b) (county may seek reimbursement from patient
or person liable for patient).
It has been suggested, however, that the person who
submits the application is to pay the $40 fee because
section 118.055 states that the various court fees to be
collected by the county clerk, including the $40 fee for
mental health services, are to be paid by the llpartyll
initiating the action. See also Acts 1967, 60th Leg., ch.
680, at 1785; Acts 1977, 65th Leg., ch. 291, at 763; Acts
1981, 67th Leg., ch. 574, at 2341; Acts 1983, 68th Leg., ch.
101, at 500; Acts 1985, 69th Leg., ch. 180, at 746 (previous
versions of fee statute). This statement is problematic in
regard to an application for mental health services because
the person who makes the application does not thereby become
a party to a lawsuit. See, e.u., V.T.C.S. arts. 5547-48(3),
5547-13 (county or district attorney shall represent that
state in hearings on court-ordered mental health treatment):
see also Texas Farm Bureau Cotton Ass'n v. Lennox, 297 S.W.
743 (Tex. 1927): Doe v. Roe, 600 S.W.2d 378 (Tex. Civ. APP.
- Eastland 1980, writ ref'd n.r.e.) (both cases discussing
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Honorable Mike Driscoll - Page 5 (JM-1234)
meaning of term l*party*'). We need not determine whether the
person submitting an application for mental health services
is "the party initiating the action," however, because we
believe that the specific language in article 5547-14
controls. In other words, because the legislature has
specifically indicated that counties, at least initially,
are to bear the cost of commitment proceedings, we do not
think article 118.055 authorizes the county clerk to collect
a fee from the person who files an application for court-
ordered treatment. The county is responsible for the cost
of services of the clerk, but it may seek reimbursement from
the patient or from a person liable for the patient's
support in a state mental health facility. V.T.C.S. art.
5547-14, 5 (b).
Before we address your question in regard to persons
who are dependent on drugs or alcohol, it is necessary to
clarify which statutory provisions apply. Before 1989,
commitment procedures for alcoholics were set out in article
5561c-2, V.T.C.S. Commitment procedures for drug-dependent
persons were set out in article 5561c-1, V.T.C.S. When the
legislature adopted the Health and Safety Code in 1989, it
repealed those statutes. Renealed by Acts 1989, 71st Leg.,
ch. 678, § 13(l) (eff. Sept. 1, 1989); Acts 1989, 71st Leg.,
1st C.S., ch. 23, 5 16(5) (eff. Nov. 1, 1989). The provi-
sions regarding commitment of alcoholics were recodified in
chapter 462 of the Health and Safety Code: those regarding
commitment of drug-dependent persons were moved to chapter
463. Then, in its first called session, the 71st Legisla-
ture, which had repealed articles 5561c-1 and 5561c-2,
repealed article 5561c-1 again and amended article 5561c-2
to cover commitment proceedings for all "chemically depen-
dent" persons. Acts 1989, 71st Leg., 1st C.S., ch. 23,
§ 13, at 54 (hereinafter S.B. 57).
The repeal of a statute by a code does not affect an
amendment of the statute by the same legislature which
enacted the code. Gov't Code 5 311.031(c). The amendment
is preserved and given effect as part of the code provision.
Id. Therefore, the amendments made to article 5561c-2 by
S.B. 57 are to be given effect as part of the Health and
Safety Code. In other words, the provisions applicable to
persons dependent on alcohol are now the same as the provi-
sions applicable to persons dependent on other drugs. The
applicable provisions are those found in S.B. 57. To
minimize confusion, we will also cite the section designa-
tions set out in Title 2 of the Texas Alcohol and Drug Abuse
Services Act, as amended by section 13 of S.B. 57, in
discussing the provisions applicable to emergency detention
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Honorable Mike Driscoll - Page 6 (JM-1234)
of and court-ordered treatment for chemically dependent
persons.
An application for emergency detention of a chemically
dependent person is made to a judge or magistrate, not the
county clerk. S.B. 57, Acts 1989, 71st Deg., 1st C.S., ch.
23, 5 13, at 56 (codified at V.T.C.S. art. 5561c-2, 5 2.02(d)).
An application for court-ordered treatment for a chemically
dependent person is made to the appropriate county clerk.
Id. at 58 (codified at V.T.C.S. art. 5561c-2, § 3.02(a)).
The following provision applies to the costs of commitment:
The laws relating to payment of costs of
commitment and support, maintenance, and
treatment and to securing reimbursement for
those actual costs that are applicable to
court-ordered mental health, probation, or
parole services apply to each item of expense
incurred by the state or the county in
connection with the commitment, care, custo-
dy, treatment, and rehabilitation of a person
receiving care and treatment under this Act.
Id. at 68 (codified at V.T.C.S. art. 5561c-2, 0 5.11(a)).
In other words, that provision means that the county clerk
is to look to the laws governing court-ordered mental health
services, probation services, or parole services to deter-
mine the fees to be charged upon submission of an applica-
tion for court-ordered treatment of a chemically dependent
person. Because the procedures in regard to an application
for court-ordered mental health treatment closely parallel
the procedures in regard to applications for court-ordered
treatment of a chemically dependent person, we conclude that
the county clerk is to look to the laws governing court-
ordered mental health treatment to determine whether the
county clerk is to collect a fee from the person who submits
an application for court-ordered treatment of a chemically
dependent person. But see id. 5 5.11(c) (codified at
V.T.C.S. art. 5561c-2) (county may not pay cost for person
committed to private hospital unless authorized by commis-
sioners court). Se cz n lly Code Crim. Proc. arts. 42.12,
5 ll(a)(16) (condityoneo?irobation may include drug treat-
ment), 42.18, § 8(g) (any condition authorized for probation
also authorized for parole). Consequently, we conclude that
the county clerk is not to collect a fee from the applicant,
but that the county may seek reimbursement from the patient
or a person liable for the patient's support in a state
facility.
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You also ask the following question:
May the Commissioners Court set a fee to
be collected by the sheriff or constables for
the transport of mental health patients to
and from private hospital facilities to the
location where the commitment hearings are
held?
Because the term "proceedings" in article 5547-14 has been
interpreted broadly, we conclude that sheriffs and consta-
bles may not collect fees directly from patients for trans-
portation to and from commitment proceedings. The county is
to bear those costs. V.T.C.S. art. 5547-14. The county may
seek reimbursement. Id.
SUMMARY
The Harris County Clerk is not to collect
a fee upon submission of an application for
emergency detention or court-order treatment
of a mentally ill person. The county is
responsible for costs of such services, but
it may seek reimbursement from a person
liable for the patient's support in a state
mental health facility. Similarly, the
Harris County Clerk is not to collect a fee
upon submission of an application for emer-
gency detention or court-ordered treatment of
a chemically dependent person, but the county
may seek reimbursement. Sheriffs and consta-
bles may not collect fees directly from
patients for transportation to and from
hearings in regard to court-ordered mental
health treatment.
L-L-k
Very truly y
JIM
.
MATTOX
,
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
P. 6571
,
Honorable Mike Driscoll - Page 8 (JM-1234)
JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 6572