Hon. Wm. N. Hensley OpInIonNo. v-597

CriminalDistrict Attorney San Antonio, Texas Re: Thepayment from County funds of fees of attorneys appointedby the court to represent the defendant In lunacy cases. Dear Sir:

reads, In Reference Is made to your recent request which

part,,a8follows: "OnM&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 opinionNo. 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, togetherwith our opinion therton, and we desire your oplnIon thereto. The request of the CountyAuditor 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 authorizedme to draw Voucher Warrant In payment of same. "Thisclaim of Mr. Klein Is for representingdefendants In three lunacy cases at $5.00 per case,he having been appointedby 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 Statutesauthorizes the County Judge to appoint council In lunacy cases 'ata fee not to exceed $5.00 per case & be taxed as cost In the case. "This statutedoes not say that this fee shallbe paid by the County from County funds. It appears tome that If there Is no other Statute authorlzlng this fee td be paid from Coun- ,tyfunds that It wduld be paid If and when the costwere collected In each case."Does the Statutepermit th$s fee to be paid from Count,y funds?" ', Article 5550, Vi C. S., Is as follows: "The cause shallbe docketed on theprobatedocket of :the.Court In the uame of the State of Texas as plaintiff, and theperson charged to be Insane as defendant. The CountyAttorney or the DistrictAttorney In countieshavingno CountyAttorney, shall appear and represent the State on the hearing, and the defendant shallalso be entitled to COUHsel;and In proper cases the CountyJudge may appoint counsel for that purpose. "In cases In which the CountyJudge may deem It necessary to appoint counsel for the defendant, such appointment shall be noted upon the docket giving thename of the attorney so appointed, and In cases Inwhich the CountyJudge 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 fixedby the CountyJudge, and noted on the docket, In an amount not to exceedFive Dollars ($5,00),tobe taxed as coats In the case. Artlhle 4316,V. C. S.,provides that: "Whenany person IS found to be of unsoundmind or to be an habitual drunkard, the cost of the proceeding shallbe paid out of his estate; or, If his es'- tatebe InsuffIcIent to pay the aame, such costs shallbe paid out of the county treabury,and the judgment of the court shallbe accordingly. If the defendant be discharged; theperson at whose Instance the proceeding was had shall pay the costs of such proceeding;unless the Informantbe an officer acting In his official cap&Ity in filing the Information, In which cash the costs shallbe paid out of the county treasury.n

we assume that a fee of $5.00 was allowed by the CountyJudge In each case.

Article 5550 provides that such fee shallbe taxed as costs. Article 4316 provides how costs shall be paid In lunacy,cases. Sinceboth the foregoing statutes relate to lunacy oases, theymust 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 shouldbe paid out ofhis estate. But if his estatebe Insufficient, then It shouldbe paid out of the county treasury. If the defendantbe discharged, then the fee shouldbe paid by theperson at whose Instance suchproceeding was had, .unless the Informant be an officeracting 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 shouldbe paid out of the County Reasury as part of the posts. If the defendantwas discharged, then the fee should be paid by the person at whose Instance suchproceeding was had, unless the Informant be an offloer acting within his offlclal capacity In filing the complaint, In which case the costs shallbe nald out of the County ~easurY. Articles-

### 5550and 

### 4316,V. c. 3. Your8 very truly, ATTORNEY GENERAL OF TEXAS

BA:erc:w BY AssIst+nt

APPROVED;: