### THEATTORNEY GENERAL
OF TEXAS

Honorable Doug Crouch OpinionNo. C-295 DistrictAttorney Tarrant County Re: In a mental health case, Fort Worth, Texas can the trial judge properly direct the patient and his family not to pay the $5.00 statutory judge's fee listed on the cost bill for such case and related Dear Mr. Crouch: question.

You have requested the opinion of this office in regard to the followingtwo questionsconcerningcosts in a mental health case: "(1) In a mental health case, can the trial judge properlydirect the patient and his family not to pay the $5.00 statutory judge's fee listed on the cost bill for such case?'"(2) 1

n a mental health case, can the trial judge orooerlvdire?t the countv clerk to tax the $5-06 statutory judgess fee against the county treasurer?"
Prior to the enactmentof the Mental Health Code, Articles 5547-l to 5547-104,Vernon's Civil Statutes,the following statutesgoverned the taxing and payment of costs of a Hearing in a mental health case: Article 5550, Vernon's Civil Statutes;Article 5561, Vernon's Civil Statutes;and Article 4316, VernonOs Civil Statutes. These statutesprovided that Officerss, jUPOPS" and attorneys'fees be taxed as costs and paid out of the patientusestate,but if such estate Is lnsufficient, said costs were to be paid by the county.

In 195T9 when the 55th Legislatureenacted the aforesaid Mental Health Code, it expreaslyrepealedArticles 5550 and 5561. Article 5547-103,therein,provides:Hon. Doug Crouch,page 2 (C-295)

"The followingStatutesand Acts, together with all laws or parts of laws In conflictherewith, are hereby repealed: II

. . . "RevisedCivil Statutes of Texas, 1925, Article 5550, as amended,Acts 1937, Fortyfifth Legislature,Chapter 445, Section 1; .Article5561, as amended,Acts, 1929, jorty-firstLegislature,First Called Session, Chapter 101, Acts, 1933,,,Forty-thirdLegislature, Chapter 200;

. . . Article 4316 had previously,in 1955, been incorporated by the 54th Legislatureinto Section 247 of the Probate Code, Vernon's Civil Statutes. The 55th Legislaturedid note Incorporate Article 4316 into the Mental Health Code. However, the 55th Legislatureprovided, in Article 5547-100,the applicability of the Mental Health Code, to-wit:

"This Code applies to any conduct,transaction or proceedingwithin its terms which occur3 after th ff ti

. . . (Emphas~seou~~) ve dt a e 'f this Code,
Therefore,one must look to the provisionsof the Mental Health Code when seeking to determinematters that fall within its terms. There is a specific subdivisionof the Mental Health Code that governs costs in a Mental Health proceeding. Article 5547-14 states: atieilaihaThecounty of legal residence of the

n pay the costs of TemporaryHospiallzatlonsIndefiniteCommitmentand Re-examination and Hearing proceedings,Includingattorneys' fees and physicians'examinationfees, and expenses of transportation

to a Statemental hospital or to an agency of the United States. "(b) FOP the amounts of these costs actually paid, the county is entitled to reimbursement by the patient or any person or estate liable for his support, in a State Hospital," (Bnphasisours)
It is significantto note that the Legislaturechanged the primary burden of costs from the patient and his estate to the county.
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Hon. Doug Crouch,page 3 (C-295)

The statutory judge's fee is a part of the costs of the Hearing proceedings. 

### c-121 (1963). See Attorney General'sOpinionNo.

The order of a judge directinga patient and his family not to subdivision (b

7 ay the statutory judge's fee* in oppositionto the law. of Article 5547-14,has the effect of suspending

Such an act, by a member of the judiciary,is in violation of the Constitution. Article I, Section 28 of the Texas Constitutionstates:

'NO power of suspendingthe laws shall be exercisedexcept by the legislature." The duty of a member of the judiciary is to make the law effective,not to suspend it. The Supreme Court in the case of Turner v. Cross, 

### a3Tex. 

### 218, la S.W. 

### 578 (la92), stated the duty of a court as follows:

.It is the duty of a court to administer the law as it is written, and not to make the law; and however harsh a statutemay seem to be, or whatevermay seem to be its omissions courts cannot on such considerations by constructionsustain 1 s 0 era it does not apply, without assuming functionsthat pertain solely to $he legislativedepartmentof the government.
. . . (Emphasisours] The Dallas Court of Civil Appeals reiteratedthis statementof a courts8dut in the case of Sharp v, Jester, 239 S.W. 655 (Tex. Civ.App. 1922

T at page 658:
"Courtsare the agency by which the law is made effective--merely the servants of the law, chargedwith the duty, mot to make a law to their liking by forced constructioneither to give a remedy not provided for or to withhold one secured,but to ascertainand enforce the law as created by the legislative power of the state. Thereforethe duties of and limitations on the powers of the judiciaryare as importantto be observedby courts as it is that the people should bow to the majesty of the law. Both must concur to secure a harmoniousand satisfactoryenforcementand observanceof the law m



### -l412-Hon. Doug Crouch,page 4 (C-295)

An examinationof subdivisions(a) and (b) of Article 5547-14 reveals that it is proper for the judge to adjudge the statutory judge's fee against the county as said fee is a part of the Hearing proceedings. The county then has the right of reimbursement

against the patient or any person OP estate liablefor his sup

Port for the amount of the costs actuallypaid. Subdivision (a clearly states that "The county of legal residence shall pay the costs.' Subdivision (b) states that the county is entitled to reimbursement by the patient or any person or estate liable for his support." (Emphasisours). This statute 'is not ambiguous. It is susceptibleof but one meaning, to-wit: the county shall pay the costs, having the right of reimbursement against the patient and those liable for his support. 

### As to the necessity for constructionof a statute , see 53 Tex.Jur.2d,173, Statutes,Sec. 123 and cases cited therein:

"Resortmay be had to the canons of construction

when necessary to determine the meaning of an ambiguous statute. Rut a court will not assume to construe or Interpreta statute if there Is no necessity for it to do so, that is, If the statute is susceptibleof but one construction. "There is nq room for construction when the law is expressedin plain and unambiguous languageand its meaning is clear and obvious. In such a case the law will be applied and enforced as It reads, regardlessof its policy or pu$pose, or the justice of Its effect. a . . Since the 55th Legislaturespecifically enacted the Mental Health Code, one must look to its provisionswhen seeking to determinematters that fall within its terms, Article 5547-14, i:L ;;d(J~ of said Code governs the matter ,ofcosts In a mental

Subdivision (a) states that the county shall pay the costs oh the hearing proceedings. Subdivision (b) states that the county is entitled to reimbursementfrom the patient or those liable for his support. Therefore, It is improper for a judge to suspend the law by directinga patient and his family not to pay the costs in oppositionto Article 5547-14 (b). However, it is proper for the court to adjud e the statutory judge's fee against the county as Article 55 7-14 & (a) states that the county shall pay the costs of the Hearing proceedings.

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Hon. Doug Crouch,page 5 (C-295)

SUMMARY
In a Mental Health case, a judge is not authorizedto direct a patient and his family not to pay the statutory judge's fee; however, the court can adjudge the statutory judge's fee against the county. Very truly yours, WAGGONW CARR Attorney General

RBJ:mkh
APPROVED: OPINION COMMITTEE
W. V. Geppert, Chairman John Reeves Gordon Houser Ralph Rash Cecil Rotsch " ~Floy B. Johnson Assistant

APPROVRD FOR THE ATTORNEY GENERAL BY: Stanton Stone

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