. 

October 16, 1990 

Honorable Mike Driscoll Opinion No. ~~-1234 

Harris County Attorney 

1001 Preston, Suite 634 Re: Authority of a county clerk 

Houston, Texas 77002 to collect a fee upon filing of 

an application for emergency detention or court-ordered services 

in cases involving mental competency or chemical dependency, 

and related questions (RQ-2004) 

Dear Mr. Driscoll: 

You ask the following question: 

What fee(s), if any, is the County Clerk 

authorized to collect upon the submission or 

filing of an application for emergency detention or court-ordered services in cases 

involving mental competency, chemical dependency or drug dependency? 

We will first address your question in regard to emergency detention of mentally ill persons. Any adult person 

may apply for emergency detention of another person upon a 

showing that the applicant has reason to believe that the 

subject of the application is mentally ill and that he or 

she poses an imminent risk of serious harm to himself or 

others. V.T.C.S. art. 5547-28. Such an application is to 

be presented to a magistrate, not to the county clerk. Id. 

art. 5547-28, 5 Cc) * An application for court-ordered 

mental health services is to be filed with the appropriate 

county clerk. Id. art. 5547-32, 5 (a). 

Section 118.052 of the Local Government Code sets out a 

fee schedule for clerks of county courts. The fee to be 

charged for "mental health services" is $40. It is not 

clear, however, who is responsible for the $40 fee. To 

answer that question, it is necessary to examine the language and history of section 118.055(c) of the Local Government Code. 

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Honorable Mike Driscoll - Page 2 (JM-1234) 

Section 118.055(c) of the Local Government Code provides that the $40 fee for mental health services is for the 

services listed in articles 5547-13, 5547-14, and 5547-15, 

V.T.C.S. The substance of section 118.055(c) was first 

adopted in 1967 as part of an act setting out fees to be 

charged by county clerks and clerks of county courts.1 Acts 

1967, 60th Leg., ch. 600, at 1785. That act stated that 

articles 5547-13, 5547-14, and 5547-15 were repealed to the 

extent that they were in conflict with the new act. A 1967 

opinion of this office concluded that the repealer was 

ineffective because the caption to the bill did not meet 

constitutional requirements. Attorney General Opinion M-135 

(1967). In 1977 this office concluded that whatever the 

case may have been in 1967, a 1977 amendment of the fee 

statute validated the language stating that articles 5547-13 

through 5547-15 were repealed to the extent of conflict with 

the fee statute. Attorney General Opinion H-1097 (1977). 

The repealing language in the fee statute is troublesome since neither the county clerk nor the fees of the 

county clerk are specifically mentioned in articles 5547-13, 

5547-14, or 5547-15. Article 5547-13 provided that the 

county or district attorney was to represent the state in 

hearings on court-ordered mental health services. Article 

5547-14 stated that counties were to pay for certain mental 

health proceedings and that those counties were entitled to 

reimbursement. Article 5547-15 provided that appointed 

attorneys and physicians were entitled to reasonable compensation, which was to be taxed as costs in the case. 

In any case, Attorney General Opinion H-1097 considered 

the combined effect of the portion of the fee statute 

1. The constitution provides that the county clerk is 

the clerk for the constitutional county court. Tex. Const. 

art. V, 5 20. Section 25.0010(b) of the Government Code 

states that the county clerk shall serve as clerk of each 

statutory county court. See also Gov't Code gg 25.1032(j) 

(Harris County Clerk shall keep separate docket for each 

county civil court at law), 25.1033(l) (district clerk 

serves as clerk for Harris County criminal courts at law), 

25.1034 (Harris County Clerk shall keep separate docket for 

Harris County statutory probate courts). Consequently, we 

will use the term "county clerk" in this opinion to describe 

the Harris County Clerk in all of her roles. 

p. 6566 
Honorable Mike Driscoll - Page 3 (JM-1234) 

regarding mental health services and articles 5547-13, 

5547-14, and 5547-15, and concluded: 

[The fee provision] sets the clerk's fee 

in 'each original cause or action in a 

Probate Court . . . due and payable and to be 

paid by the party . . . initiating said 

cause . . . .I In an action involving a 

mentally ill person, the clerk's total fee 

for services in connection with proceeding 

under articles 5547-13 through 5547-15 is set 

at $40.00. . . . [The fee statute] thus 

limits the amount that may be charged for 

filing a petition, issuing notices, administering oaths, and performing all other 

clerical duties in connection with the kinds 

of commitment listed in article 5547-14. If 

the county judge allows compensation to an 

appointed attorney or physician under article 

5547-15, it is taxed as costs in the case, 

and the clerk has certain duties with respect 

to collecting it. . . . [The fee statute] 

does not attempt to repeal the provisions of 

the Mental Health Code regarding payment of 

attorneys* fees, physicians' fees, and transportation costs. Since these fees are not 

paid to the clerk, they are unaffected by 

[the fee statute]. 

See also Attorney General Opinion M-135 (1967). In other 

words, Attorney General Opinion H-1097 determined that any 

services of the county clerk in regard to mental health 

proceedings, including the filing of an application, were to 

be considered services listed in articles 5547-13 through 

5547-15 and that the total fee for any such services was to 

be $40. 

It is significant that Attorney General Opinion H-1097 

did not conclude that the fee statute had repealed any 

specific language of articles 5547-13 through 5547-15. If 

Attorney General Opinion H-1097 had concluded that specific 

portions of articles 5547-13 through 5547-15 had been 

repealed, we would have to consider whether any such portions had been revived, since articles 5547-13 through 

5547-15 were revised and reenacted in 1983 as part of a 

substantive revision of the mental health statutes. Acts 

1983, 68th Leg., ch. 47, § 1, at 211 (eff. Sept. 1, 1983). 

Fortunately, we have been spared that effort. Because 

nothing in the 1983 revisions calls the conclusion of 

P. 6567 
Honorable Mike Driscoll - Page 4 (JM-1234) 

Attorney General Opinion H-1097 into question, those conclusions remain valid. 

Although Attorney General Opinion H-1097 determined 

what services the $40 fee covered, it did not determine from 

whom the $40 fee was to be collected. Although the history 

and language of the relevant statutes create some confusion 

on this issue, we conclude that the county clerk is not to 

collect a fee from the person who submits an application for 

emergency detention or court-ordered treatment, but that the 

county may seek reimbursement from the patient for the 

services of the,county clerk in such matters. 

Because no services of the county clerk were actually 

mentioned in articles 5547-13 through 5547-15, Attorney 

General Opinion H-1097 had to be saying that the $40 covered 

services of the county clerk in connection with proceedings 

mentioned in those provisions. It happens that article 

5547-14 provides that the county is to bear the cost of 

mental health proceedings. Because Attorney General Opinion 

H-1097 viewed the services of the county clerk as part of 

the mental health proceedings for purposes of the fee 

statute, it is consistent to interpret the provision that 

the county bear the cost of such proceedings to mean that 

the county is to bear the cost of the clerk's services. We 

conclude, therefore, that under article 5547-14 the county 

is to bear the costs of the services of the county clerk in 

regard to mental health proceedings. m V.T.C.S. art. 

5547-14, 5 (b) (county may seek reimbursement from patient 

or person liable for patient). 

It has been suggested, however, that the person who 

submits the application is to pay the $40 fee because 

section 118.055 states that the various court fees to be 

collected by the county clerk, including the $40 fee for 

mental health services, are to be paid by the llpartyll 

initiating the action. See also Acts 1967, 60th Leg., ch. 

680, at 1785; Acts 1977, 65th Leg., ch. 291, at 763; Acts 

1981, 67th Leg., ch. 574, at 2341; Acts 1983, 68th Leg., ch. 

101, at 500; Acts 1985, 69th Leg., ch. 180, at 746 (previous 

versions of fee statute). This statement is problematic in 

regard to an application for mental health services because 

the person who makes the application does not thereby become 

a party to a lawsuit. See, e.u., V.T.C.S. arts. 5547-48(3), 

5547-13 (county or district attorney shall represent that 

state in hearings on court-ordered mental health treatment): 

see also Texas Farm Bureau Cotton Ass'n v. Lennox, 297 S.W. 

743 (Tex. 1927): Doe v. Roe, 600 S.W.2d 378 (Tex. Civ. APP. 

- Eastland 1980, writ ref'd n.r.e.) (both cases discussing 

P. 6568 
Honorable Mike Driscoll - Page 5 (JM-1234) 

meaning of term l*party*'). We need not determine whether the 

person submitting an application for mental health services 

is "the party initiating the action," however, because we 

believe that the specific language in article 5547-14 

controls. In other words, because the legislature has 

specifically indicated that counties, at least initially, 

are to bear the cost of commitment proceedings, we do not 

think article 118.055 authorizes the county clerk to collect 

a fee from the person who files an application for courtordered treatment. The county is responsible for the cost 

of services of the clerk, but it may seek reimbursement from 

the patient or from a person liable for the patient's 

support in a state mental health facility. V.T.C.S. art. 

5547-14, 5 (b). 

Before we address your question in regard to persons 

who are dependent on drugs or alcohol, it is necessary to 

clarify which statutory provisions apply. Before 1989, 

commitment procedures for alcoholics were set out in article 

5561c-2, V.T.C.S. Commitment procedures for drug-dependent 

persons were set out in article 5561c-1, V.T.C.S. When the 

legislature adopted the Health and Safety Code in 1989, it 

repealed those statutes. Renealed by Acts 1989, 71st Leg., 

ch. 678, § 13(l) (eff. Sept. 1, 1989); Acts 1989, 71st Leg., 

1st C.S., ch. 23, 5 16(5) (eff. Nov. 1, 1989). The provisions regarding commitment of alcoholics were recodified in 

chapter 462 of the Health and Safety Code: those regarding 

commitment of drug-dependent persons were moved to chapter 

463. Then, in its first called session, the 71st Legislature, which had repealed articles 5561c-1 and 5561c-2, 

repealed article 5561c-1 again and amended article 5561c-2 

to cover commitment proceedings for all "chemically dependent" persons. Acts 1989, 71st Leg., 1st C.S., ch. 23, 

§ 13, at 54 (hereinafter S.B. 57). 

The repeal of a statute by a code does not affect an 

amendment of the statute by the same legislature which 

enacted the code. Gov't Code 5 311.031(c). The amendment 

is preserved and given effect as part of the code provision. 

Id. Therefore, the amendments made to article 5561c-2 by 

S.B. 57 are to be given effect as part of the Health and 

Safety Code. In other words, the provisions applicable to 

persons dependent on alcohol are now the same as the provisions applicable to persons dependent on other drugs. The 

applicable provisions are those found in S.B. 57. To 

minimize confusion, we will also cite the section designations set out in Title 2 of the Texas Alcohol and Drug Abuse 

Services Act, as amended by section 13 of S.B. 57, in 

discussing the provisions applicable to emergency detention 

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Honorable Mike Driscoll - Page 6 (JM-1234) 

of and court-ordered treatment for chemically dependent 

persons. 

An application for emergency detention of a chemically 

dependent person is made to a judge or magistrate, not the 

county clerk. S.B. 57, Acts 1989, 71st Deg., 1st C.S., ch. 

23, 5 13, at 56 (codified at V.T.C.S. art. 5561c-2, 5 2.02(d)). 

An application for court-ordered treatment for a chemically 

dependent person is made to the appropriate county clerk. 

Id. at 58 (codified at V.T.C.S. art. 5561c-2, § 3.02(a)). 

The following provision applies to the costs of commitment: 

The laws relating to payment of costs of 

commitment and support, maintenance, and 

treatment and to securing reimbursement for 

those actual costs that are applicable to 

court-ordered mental health, probation, or 

parole services apply to each item of expense 

incurred by the state or the county in 

connection with the commitment, care, custody, treatment, and rehabilitation of a person 

receiving care and treatment under this Act. 

Id. at 68 (codified at V.T.C.S. art. 5561c-2, 0 5.11(a)). 

In other words, that provision means that the county clerk 

is to look to the laws governing court-ordered mental health 

services, probation services, or parole services to determine the fees to be charged upon submission of an application for court-ordered treatment of a chemically dependent 

person. Because the procedures in regard to an application 

for court-ordered mental health treatment closely parallel 

the procedures in regard to applications for court-ordered 

treatment of a chemically dependent person, we conclude that 

the county clerk is to look to the laws governing courtordered mental health treatment to determine whether the 

county clerk is to collect a fee from the person who submits 

an application for court-ordered treatment of a chemically 

dependent person. But see id. 5 5.11(c) (codified at 

V.T.C.S. art. 5561c-2) (county may not pay cost for person 

committed to private hospital unless authorized by commissioners court). Se cz n lly Code Crim. Proc. arts. 42.12, 

5 ll(a)(16) (condityoneo?irobation may include drug treatment), 42.18, § 8(g) (any condition authorized for probation 

also authorized for parole). Consequently, we conclude that 

the county clerk is not to collect a fee from the applicant, 

but that the county may seek reimbursement from the patient 

or a person liable for the patient's support in a state 

facility. 

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Honorable Mike Driscoll - Page 7 (JM-1234) 

You also ask the following question: 

May the Commissioners Court set a fee to 

be collected by the sheriff or constables for 

the transport of mental health patients to 

and from private hospital facilities to the 

location where the commitment hearings are 

held? 

Because the term "proceedings" in article 5547-14 has been 

interpreted broadly, we conclude that sheriffs and constables may not collect fees directly from patients for transportation to and from commitment proceedings. The county is 

to bear those costs. V.T.C.S. art. 5547-14. The county may 

seek reimbursement. Id. 

SUMMARY 

The Harris County Clerk is not to collect 

a fee upon submission of an application for 

emergency detention or court-order treatment 

of a mentally ill person. The county is 

responsible for costs of such services, but 

it may seek reimbursement from a person 

liable for the patient's support in a state 

mental health facility. Similarly, the 

Harris County Clerk is not to collect a fee 

upon submission of an application for emergency detention or court-ordered treatment of 

a chemically dependent person, but the county 

may seek reimbursement. Sheriffs and constables may not collect fees directly from 

patients for transportation to and from 

hearings in regard to court-ordered mental 

health treatment. 

Very truly y , L-L-k . 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCREARY 

Executive Assistant Attorney General 

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Honorable Mike Driscoll - Page 8 (JM-1234) 

JUDGE ZOLLIE STEAKLRY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

, 

P. 6572