,.

NE 

### GENE

EXAS



### June30, 1953

Hon. JamesA. Bethea, M.D. OpinionNO. 

### s-61 Executive Director Board for Texas ,State Hospi-Re: Legality of a District tals and Specia.1

Schools Att,orney receiving a Austin, Texas 10% cornmIssion on collecti,ons

on any account due for board and treatment when payments are to be made in monthly installmentsunder subDear Dr. Bethea: mitted contracts.

Your opinionrequest of May 27th concerns the legalityof a DistrictAttorney receiving a 10% commission on cpllectionson an account due for board and treatmentwhen payments are to be made in monthly installments~ under the submitted contract.

The DistrictAttorney of Hill County filed suit under Article 31,96a, Vernon's Civil Statutes, on behalf of the State,,

acting through the Board of Texas State Hospitals and Special Schools against the guardian of
a Statehospital patient for 

### $6,540.00due the State for board and treatmentof the patient. In considerationof the State dismissing its pending suit against the guardian, the guardian agreed that the above amo~unt was due the State, that $l,OOO.OO shouldbe paid immediatelyon the account. and that $rO.OOwould be paid eachmonth to apply on the balance of the above amount due the State.

Section 

### 5 of Artiale 3196a,V.C.S., reads as follows:

"Upon thewritten request of the State Board of Control the.Countyor Dis,trictAttorney, or in case of the refusal or inability of both to act, the Attorn,ey General, shall repre~aent

the State in filing a claim in ProbateCourt ora petition in a Court of competent jurisdiction,wherein the guardian of such patient and/or other person legallyHon. JamesA. Bethea, page 2 (s-61)

liable for his supp,ort, may be cited to appear then and there to show causewhy the State shouldnot have Judgmentagainsthim
or them for the amount due it for the support, maintenance,and treatment of such patient; and, upon sufficient showing, judgmentmay be entered~ against such guardian
or other persons for the amount found to be due the State,which j,udgment may be enforced
as in other cases. A verified account, sworn to by the superintendentof the respective hospitals or psychopathichospitalswherein such patient is being treated,~ or has been treated, as to the amount due shall be sufficient evidence to authorize the Court to render judgmenttherein. The County or District Attorney representing the Statue shall be entitled to-a commission of ten (10)per cent, of the amount collected. All moneys so collected, les,s.s'uch commis,slon,,~

shall be, by the said attorney,paid to the State Board of Control,which shall receive and receipt for the same and shall use the same for the maintenance and improvementof said institution or institutions inwhich said patient shall have been confined,"

This article clearly authorizes the DistrictAttorney to represent the State in filing a claim, and provides that such District Attorney shall be entitled to a commissionof lO$ of the amount collected.

There being no q,ue,stion raised concerning the right of the DistrictAttorney under the above mentioned statute to receive a 10% commission on the $l,OOO.OOwhen collected,we come to your inquirywhether he is entitled to such commissionon the $10.00 to be paid monthly on the balance of the amount due the State under the contract.

It is clear,we think, that a District Attorney receives commissionsonly on the amount actually collected. Therefore, it is our opinion that a District Attorneywould be entitled to a 10% of the $10.00, or so much thereof as may be actually collected, each month, when it has been paid in money to some officer authorized by law to collect it.Hon. JamesA. Bethea, page 3 (s-61)

Section 5 of Article 3912e,, V.C.S., provides that it is the duty of officers to charge ,andcollect such commissions,and further states that "asand when such fees are collected they shall be deposited in the offIcerat salary fund.

. .' Alao see Tex. Const. Art. XVI, Sec. 61.

'TheDistrictAttorney of Hill County will be entitled to receive 10% oommiasion
on the $10.00 to be paid monthly on a State hospital board and treatment account due the State, as provided in a contract with the guardian of a patient,when the $10.00 is actually collected,such commis-, sion to be depos~ited in the County Officers' Salary Fund of Hill County.

Yours very truly,

APPROVED:
Rudy G.Rice State Affairs Divis$on

C. K. Richards Reviewer

Burns11 Waldrep ExecutiveAssistant

JohnBen Shepperd Attorney General JOHNBEN SHEPPERD Attorney General

William M. King

Assistant