.

October 16, 1990

Honorable Mike Driscoll Opinion No. ~~-1234 Harris County Attorney 1001 Preston, Suite 634 Re: Authority of acounty clerk Houston, Texas 77002 to collect a feeupon filing of
an application for emergency detention orcourt-ordered services incases involving mental competency or chemical dependency, and related questions (RQ-2004)

DearMr. 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 foremergency detention or court-ordered services in cases involving mental competency, chemical dependency ordrug dependency?

Wewill first address your question inregard to emergency detention ofmentally illpersons. Any adult person may apply foremergency detention of another person upon a showing that the applicant has reason tobelieve that the subject of the application ismentally ill and that he or sheposes an imminent risk of serious harm tohimself or others. V.T.C.S. art. 5547-28. Such anapplication is to bepresented to amagistrate, not to the county clerk. Id. art. 5547-28, 5 Cc)* An application for court-ordered mental health services isto be filedwith 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 isnecessary to examine the language andhistory of section 118.055(c) of the Local Government Code.

P. 6565Honorable Mike Driscoll -Page 2 (JM-1234)

Section 118.055(c) of the Local Government Code provides that the $40 fee formental health services is for the services listed inarticles 5547-13, 5547-14, and 5547-15, V.T.C.S. The substance of section 118.055(c) was first adopted in 1967 aspart 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 That act stated that articles 5547-13, 5547-14, and 5547-15 were repealed to the extent that theywere inconflict with the new act. A 1967 opinion of this office concluded that the repealer was ineffective because the caption to thebill did not meet constitutional requirements. Attorney General Opinion M-135 (1967). In 1977 this office concluded thatwhatever the
casemay have been in 1967, a 1977amendment 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 inarticles 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 topay 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 tobe taxed ascosts inthe case.

Inany 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, 520. 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) (HarrisCounty Clerk shall keep separate docket for each county civil court at law), 25.1033(l) (district clerk
serves as clerk forHarris County criminal courts at law), 25.1034 (HarrisCounty Clerk shall keep separate docket for Harris County statutory probate courts). Consequently, we will use the term "county clerk" inthis opinion todescribe theHarris County Clerk in all ofher roles.

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

regarding mental health services and articles 5547-13, 5547-14, and 5547-15, and concluded:

[Thefeeprovision] sets the clerk's fee in 'each original cause or action in a Probate Court . . .due andpayable and tobe paid by the party . . .initiating said
cause . . . .I In an action involving a mentally ill person, the clerk's total fee for services inconnection 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 apetition, issuing notices, administering oaths, and performing all other clerical duties inconnection with the kinds of commitment listed inarticle 5547-14. If the county judge allows compensation to an appointed attorney orphysician under article 5547-15, it is taxed ascosts inthe case, and the clerk has certain duties with respect to collecting it.
. . . [The fee statute] does not attempt to repeal theprovisions of theMental 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 [thefee statute].

See alsoAttorney 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 forany such services was to be $40.

It issignificant thatAttorney 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, wewould have to consider whether any such portions had been revived, since articles 5547-13 through 5547-15were revised and reenacted in 1983 as part of a substantive revision of themental 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. 6567Honorable 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 feecovered, itdid not determine from whom the $40 feewas tobe collected. Although the history and language of the relevant statutes create some confusion
on this issue, we conclude that the county clerk isnot to collect a fee from theperson 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 suchmatters.

Because no services of the county clerk were actually mentioned in articles 5547-13 through 5547-15, Attorney General Opinion H-1097 had tobe saying that the $40 covered services of the county clerk inconnection with proceedings mentioned in those provisions. It happens that article 5547-14 provides that the county is tobear the cost of mental health proceedings. Because Attorney General Opinion H-1097 viewed the services of the county clerk as part of themental health proceedings for purposes of the fee statute, it is consistent to interpret the provision that the county bear the cost of such proceedings tomean that the county istobear the cost of the clerk's services. We conclude, therefore, that under article 5547-14 the county istobear 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) (countymay seek reimbursement from patient
orperson liable forpatient).

Ithas been suggested, however, that the person who submits the application is topay 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 tobe 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 isproblematic in regard to an application formental health services because theperson whomakes the application does not thereby become
aparty to a lawsuit. See, e.u.,V.T.C.S. arts. 5547-48(3), 5547-13 (countyor district attorney shall represent that state inhearings on court-ordered mental health treatment):
see also Texas Farm Bureau Cotton Ass'n v. Lennox, 297 S.W. 743 (Tex. 1927): Doev.Roe, 600 S.W.2d 378 (Tex.Civ. APP.

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

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

meaning of term l*party*').We need not determine whether the person submitting an application formental health services is "theparty 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 tobear the cost of commitment proceedings, we do not think article 118.055 authorizes the county clerk to collect
a fee fromthe person who files an application for courtordered treatment. The county isresponsible for the cost of services of the clerk, but itmay seek reimbursement from thepatient or from aperson liable for the patient's support ina statemental health facility. V.T.C.S. art. 5547-14, 5 (b).

Before we address your question in regard to persons who aredependent on drugs or alcohol, it isnecessary to clarify which statutory provisions apply. Before 1989, commitment procedures foralcoholics were set out inarticle 5561c-2, V.T.C.S. Commitment procedures for drug-dependent persons were set out inarticle 5561c-1, V.T.C.S. When the legislature adopted theHealth and Safety Code in 1989, it repealed those statutes. Renealed byActs 1989, 71st Leg., ch. 678, §13(l) (eff.Sept. 1, 1989);Acts 1989, 71st Leg., 1stC.S., ch. 23, 516(5) (eff.Nov. 1, 1989). The provisions regarding commitment ofalcoholics were recodified in chapter 462 of theHealth and Safety Code: those regarding commitment ofdrug-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 tocover commitment proceedings forall "chemically dependent" persons. Acts 1989, 71st Leg., 1st C.S., ch. 23, §13,at 54 (hereinafter S.B. 57).

The repeal ofa statute by acode 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 ispreserved andgiven effect aspart of the code provision. Id. Therefore, the amendments made to article 5561c-2 by S.B. 57are tobe given effect aspart of the Health and Safety Code. Inother words, the provisions applicable to persons dependent onalcohol arenow the same as the provisions applicable topersons dependent on other drugs. The applicable provisions are those found in S.B. 57. To minimize confusion, wewill also cite the section designations set out inTitle 2of the Texas Alcohol and DrugAbuse Services Act, as amended by section 13of S.B. 57, in discussing the provisions applicable to emergency detention

P. 6569Honorable Mike Driscoll -Page 6 (JM-1234)

ofand court-ordered treatment for chemically dependent persons.

An application for emergency detention of a chemically dependent person ismade to a judge ormagistrate, not the county clerk. S.B. 57,Acts 1989, 71st Deg., 1st C.S., ch. 23, 5 13,at 56 (codified atV.T.C.S. art. 5561c-2, 5 2.02(d)). An application forcourt-ordered treatment fora chemically dependent person is made to the appropriate county clerk. Id. at 58 (codified atV.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 ofaperson receiving care and treatment under this Act.

Id. at 68 (codified atV.T.C.S. art. 5561c-2, 0 5.11(a)). Inother words, that provision means that the county clerk isto look to the lawsgoverning court-ordered mental health services, probation services, or parole services to determine the fees tobe charged upon submission of an application forcourt-ordered treatment of achemically dependent person. Because theprocedures inregard to an application forcourt-ordered mental health treatment closely parallel theprocedures inregard toapplications for court-ordered treatment of a chemically dependent person, we conclude that the county clerk isto look to the laws governing courtordered mental health treatment todetermine whether the county clerk isto collect a fee fromthe person who submits
an application forcourt-ordered treatment of a chemically dependent person. But see id. 5 5.11(c) (codified at V.T.C.S. art. 5561c-2) (countymay not pay cost for person committed toprivate hospital unless authorized by commissioners court). Se czn llyCode Crim. Proc. arts. 42.12, 5ll(a)(16) (condityoneo?irobation may include drug treatment), 42.18, § 8(g) (anycondition authorized forprobation also authorized forparole). Consequently, we conclude that the county clerk isnot to collect a fee from the applicant, but that the county may seek reimbursement from the patient
or a person liable forthe patient's support ina state facility.

Pa 6570Honorable 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 ofmental health patients to and fromprivate hospital facilities to the location where the commitment hearings are held?

Because the term "proceedings" inarticle 5547-14 has been interpreted broadly, we conclude that sheriffs and constablesmay not collect feesdirectly frompatients for transportation to and fromcommitment proceedings. The county is tobear those costs. V.T.C.S. art. 5547-14. The county may seek reimbursement. Id.

SUMMARY

The Harris County Clerk isnot to collect
a feeupon submission of an application for emergency detention orcourt-order treatment of a mentally illperson. The county is responsible forcosts of such services, but it may seek reimbursement from a person liable for thepatient's support ina state mental health facility. Similarly, the Harris County Clerk is not to collect a fee upon submission of an application for emergency detention orcourt-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 ofTexas

MARY KELLER First Assistant Attorney General

LOUMCCREARY Executive Assistant Attorney General

P. 6571Honorable 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 SarahWoelk Assistant Attorney General ,

P. 6572