Hon. Wm. N. Hensley OpInIon No. v-597 

Criminal District Attorney 

San Antonio, Texas Re: The payment from County funds of fees of 

attorneys appointed by 

the court to represent 

the defendant In lunacy 

cases. 

Dear Sir: 

reads, In 

Reference Is made to your recent request which 

part, ,a8 follows: 

"On M&h 9, 1948, we received a 

request for an opinion from the County 

Auditor In regard to payment of attorney's fees by the County In lunacy cases 

under Article 5550, R.C.S. A copy of, 

this request Is enclosed. 

.~"On:AprIi 7, 1948, we rendered our 

opinion No. E-103 thereon, answering 

said request In the affirmative to the 

effect that the attorney's fee provided 

by law could be paid out of C,oun$y Pu&zds. 

A copy of this opinion Is enclosed. 

"The Coirnty Auditor now wants us to 

secure an opinion from you on the same 

question, not being completely sat&fied 

that we have settled the law thereon. 

"Ue, therefore, respectfully refer 

his request to you, together with our 

opinion therton, and we desire your oplnIon thereto. 

The request of the County Auditor Is, In part, 

as follows: 

1(On March 29th, the Commissioners' 

Court passed an order approving the 
1. 

ax ea, ,, 

‘- ,., 

Hon. Wm. N. Hensley, page 2 (v-597) 

claim of Lester L. Klein, Attorney at 

Law, In the amount of $15.00 and authorized me to draw Voucher Warrant In 

payment of same. 

"This claim of Mr. Klein Is for 

representing defendants In three lunacy 

cases at $5.00 per case, he having been 

appointed by Hon., Chas. J. Matthews, 

Judge County Court at Law No. 2, actlng~. 

for Chas. W. Anderson, County Judge Bexar 

County,~ Texas.. Article 5550, Vernon's 

Texas Statutes authorizes the County 

Judge to appoint council In lunacy cases 

'at a fee not to exceed $5.00 per case & 

be taxed as cost In the case. 

"This statute does not say that 

this fee shall be paid by the County 

from County funds. It appears to me 

that If there Is no other Statute authorlzlng this fee td be paid from Coun- 

,ty funds that It wduld be paid If and 

when the cost were collected In each 

case. 

"Does the Statute permit th$s fee 

to be paid from Count,y funds?" ', 

Article 5550, Vi C. S., Is as follows: 

"The cause shall be docketed on 

the probate docket of :the.Court In the 

uame of the State of Texas as plaintiff, 

and the person charged to be Insane as 

defendant. The County Attorney or the 

District Attorney In counties having no 

County Attorney, shall appear and represent the State on the hearing, and the 

defendant shall also be entitled to COUHsel; and In proper cases the County Judge 

may appoint counsel for that purpose. 

"In cases In which the County Judge 

may deem It necessary to appoint counsel 

for the defendant, such appointment shall 

be noted upon the docket giving the name 

of the attorney so appointed, and In cases 

In which the County Judge deems It neces- 
8, . 

Hon. Urn. H. Hensley, page 3 (v-597 1 

sary a fee may be allowed to counsel 

for the defendant In such sum as may 

be fixed by the County Judge, and noted 

on the docket, In an amount not to exceed Five Dollars ($5,00), to be taxed 

as coats In the case. 

Artlhle 4316, V. C. S., provides that: 

"When any person IS found to be of 

unsound mind or to be an habitual drunkard, the cost of the proceeding shall be 

paid out of his estate; or, If his es'- 

tate be InsuffIcIent to pay the aame, such 

costs shall be paid out of the county 

treabury, and the judgment of the court 

shall be accordingly. If the defendant 

be discharged; the person at whose Instance the proceeding was had shall pay 

the costs of such proceeding; unless the 

Informant be an officer acting In his official cap&Ity in filing the Information, 

In which cash the costs shall be paid out 

of the county treasury.n 

we assume that a fee of $5.00 was allowed by 

the County Judge In each case. 

Article 5550 provides that such fee shall be 

taxed as costs. Article 4316 provides how costs shall 

be paid In lunacy,cases. Since both the foregoing statutes relate to lunacy oases, they must be oonsldered to- 

.~gether In regard to the taxing of costs. When this Is 

done, and In view of the plain language of Article 4316, 

It is our opinion that If In such a trial the person Is 

found to be of unsound mind, such fee should be paid out 

of his estate. But if his estate be Insufficient, then 

It should be paid out of the county treasury. If the 

defendant be discharged, then the fee should be paid by 

the person at whose Instance such proceeding was had, 

.unless the Informant be an officer acting within his official oapaclty In filing the complaint, In which case 

the costs shall be paid out of the county treasury. 

SUMMARY 

In a lunacy case where the defendant was found to be Insane and the County Judge appointed an attorney to repre- 
1. . 

Hon. Wm. H. Hensley, page 4 (v-597) 

sent defendant and allowed.an attorney's 

fee, the fee should be paid out of defendant's estate as part of the costs of suit. 

If his estate Is Insufficient the attorney's fee should be paid out of the County 

Reasury as part of the posts. If the defendant was discharged, then the fee should 

be paid by the person at whose Instance 

such proceeding was had, unless the Informant be an offloer acting within his offlclal capacity In filing the complaint, In 

which case the costs shall be nald out of 

the County ~easurY. Articles- 5550 and 

4316, V. c. 3. 

Your8 very truly, 

ATTORNEY GENERAL OF TEXAS 

BA:erc:w 

BY 

AssIst+nt 

APPROVED;: