THEATTORNEY GENERAL 

OF TEXAS 

Honorable Doug Crouch Opinion No. C-295 

District Attorney 

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 following two questions concerning costs in a mental health 

case: 

"(1) In a mental health case, 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? 

'"(2) 1 n a mental health case, can the 

trial judge orooerlv dire?t the countv clerk 

to tax the $5-06 statutory judgess fee against 

the county treasurer?" 

Prior to the enactment of the Mental Health Code, 

Articles 5547-l to 5547-104, Vernon's Civil Statutes, the following statutes governed 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 statutes provided that 

Officerss, jUPOPS" and attorneys' fees be taxed as costs and 

paid out of the patientus estate, but if such estate Is lnsufficient, said costs were to be paid by the county. 

In 195T9 when the 55th Legislature enacted the aforesaid Mental Health Code, it expreasly repealed Articles 5550 and 

5561. Article 5547-103, therein, provides: 
Hon. Doug Crouch, page 2 (C-295) 

"The following Statutes and Acts, together 

with all laws or parts of laws In conflict herewith, are hereby repealed: 

II 

. . . 

"Revised Civil Statutes of Texas, 1925, 

Article 5550, as amended, Acts 1937, Fortyfifth Legislature, Chapter 445, Section 1; 

.Article 5561, as amended, Acts, 1929, 

jorty-first Legislature, First Called Session, 

Chapter 101, Acts, 1933,,,Forty-third Legislature, Chapter 200; . . . 

Article 4316 had previously, in 1955, been incorporated 

by the 54th Legislature into Section 247 of the Probate Code, 

Vernon's Civil Statutes. The 55th Legislature did note Incorporate 

Article 4316 into the Mental Health Code. However, the 55th 

Legislature provided, in Article 5547-100, the applicability of 

the Mental Health Code, to-wit: 

"This Code applies to any conduct, transaction or proceeding within its terms which 

occur3 after th ff ti 

. . . (Emphas~seou~~) ve 

dt 

a e ' 

f this Code, 

Therefore, one must look to the provisions of the Mental Health 

Code when seeking to determine matters that fall within its 

terms. 

There is a specific subdivision of the Mental Health 

Code that governs costs in a Mental Health proceeding. Article 

5547-14 states: 

atieilaihaThe county of legal residence of the 

n pay the costs of Temporary Hospiallzatlons Indefinite Commitment and Re-examination and Hearing proceedings, Including attorneys' 

fees and physicians' examination fees, and expenses 

of transportation to a State mental 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," (Bnphasis ours) 

It is significant to note that the Legislature changed the primary 

burden of costs from the patient and his estate to the county. 

-1411- 
. - 

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's Opinion No. 

The order of a judge directing a patient and his 

family not to 

subdivision (b 7 

ay the statutory judge's fee* in opposition to 

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 

Constitution states: 

'NO power of suspending the laws shall 

be exercised except 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, a3 Tex. 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 statute may seem to be, or 

whatever may seem to be its omissions courts cannot on such considerations by construction sustain 

1 s 0 era 

it does not apply, without assuming functions that 

pertain solely to $he legislative department of the 

government. . . . (Emphasis ours] 

The Dallas Court of Civil Appeals reiterated this statement of 

a courts8 dut in the case of Sharp v, Jester, 239 S.W. 655 (Tex. 

Civ.App. 1922 T at page 658: 

"Courts are the agency by which the law 

is made effective--merely the servants of the 

law, charged with the duty, mot to make a law 

to their liking by forced construction either 

to give a remedy not provided for or to withhold one secured, but to ascertain and enforce 

the law as created by the legislative power of 

the state. Therefore the duties of and limitations on the powers of the judiciary are as 

important to be observed by courts as it is that 

the people should bow to the majesty of the law. 

Both must concur to secure a harmonious and 

satisfactory enforcement and observance of the 

law m 

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

An examination of 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 

P 

ort for the amount of the costs actually paid. 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." (Emphasis ours). This statute 

'is not ambiguous. It is susceptible of 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 construction of a statute , see 53 Tex.Jur.2d, 173, 

Statutes, Sec. 123 and cases cited therein: 

"Resort may 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 Interpret a 

statute if there Is no necessity for it to do 

so, that is, If the statute is susceptible of 

but one construction. 

"There is nq room for construction when 

the law is expressed in plain and unambiguous 

language and its meaning is clear and obvious. 

In such a case the law will be applied and enforced as It reads, regardless of its policy 

or pu$pose, or the justice of Its effect. 

a . . 

Since the 55th Legislature specifically enacted the 

Mental Health Code, one must look to its provisions when seeking 

to determine matters that fall within its terms, Article 5547-14, 

i:L ;;d(J~ of said Code governs the matter ,of costs 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 reimbursement from the patient or 

those liable for his support. Therefore, It is improper for a 

judge to suspend the law by directing a patient and his family 

not to pay the costs in opposition to 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. 

-1413- 
. - 

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

SUMMARY 

In a Mental Health case, a judge is not 

authorized to 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 

-1414-