# TheAttorney GeneralofTexas July 5. 1982 MARKWHITE AttorneyGeneral

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AnEqual OppOrtunityI Attirmative Aclion Employer Mr. Maurice S. Pipkin Executive Director Opinion No. MU-483 State Commission onJudicial Conduct Re: Authority of county judge P. 0. Box 12265. Capitol Station to receive fees for temporary Austin. Texas 

### 78711 commitment hearings Dear Mr. Pipkin: Youask whether:

a county judge of one county may enter into a contract with another county to be compensated personally from public funds for holding hearings on temporary commitments to an institution of the Texas Department of Mental Health and Mental Retardation. Article 5547-31, V.T.C.S., provides in part as follows:

A SWO73l Application for Temporary Hospitalization of aproposed patient maybe filed with the county court of the county in which the proposed patient resides or in which the patient is found or in which the proposed patient is hospitalized by court order. (Emphasis added). - Article 5547-33. V.T.C.S.. provides in part that:

When Application for Temporary Hospitalizat:tn is filed, the county judge shall set a date for a hearing to be held within fourteen (14) days of the filing of the Application. Article 5547-41. V.T.C.S., provides in part that:

Asworn Petition for the indefinite commitment of aperson toamental hospital maybe filed with the county court of the‘ county- in which the proposed patient is hospitalized, the county from which he is temporarily committed. or the county in which he resides or is found. (Emphasis added).

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Article 5547-43. V.T.C.S., reads as follows:

WhenaPetition andthe required Certificate of Medical Examination for Mental Illness Isee V.T.C.S. art. 5547-421 are filed, the county judge shall set a date for ahearing to be held within thirty (30) days of the filing of the Petition.... The briefs and correspondence submitted to this office indicate that the relevant facts are as follows. Thejudge in question is the constitutional county judge of a county within which a Texas Department of Mental Health andMental Retardation [hereinafter MHMR] facility is located. This facility serves several neighboring counties. In 1979, this county judge informed these counties that his workload was such that he could “no longer hold temporary commitment hearings for [counties other than his own].” Bythis, he apparently meant that he would no longer conduct subsequent commitment proceedings involving patients who are originally committed to ‘the MMRfacility from other counties. Shortly thereafter, however, he agreed with other counties to hold commitment hearings involving such patients where the committing county agreed to pay him a prescribed fee for holding them. The agreement attempted CO designate him

“special judge.” We are informed that the applications which triggered the comirment hearings in question were filed in the county in which the judge regularly serves, I.e.6 the county inwhich the NRMRfacility is located; not in the counries from which the patients were committed. Thus, the fee agreements were obviously predicated upon the judge’s conclusion that he is under nolegal obligation to conduct cowmitmenr proceedings involving patients committed from other counties, even when an application is filed in his county, but that he may voluntarily agree to do so for a fee. As we shall explain, this conclusion waserroneous. Under articles 5547-31 and 5547-41. acommitment application may be filed in the county inwhich the proposed patient is hospitalized. When such application is filed,’ the county judge is required to schedule ahearing. V.T.C.S. arts. 5547-33, 5547-43. Thus, whenthe applications for the continued commitment of patients who were hospitalized in the HRMRfacility located in the judge’s county were filed in that county, the judge assumed aduty to hold a commitment hearing, as his county was the one “in which the proposed patient [was] hospitalized.” V.T.C.S. arts. 5547-31, 5547-41. Hecould not refuse to perform this duty as county judge and insist that he be compensated therefor as “special judge.” See Nueces County v. - Currington, 162S.W.2d 687 (Tex. 1942). Ue are aware of no constitutional or statutory provision which would authorize this county judge, acting as county judge or “special judge,” to receive compensation for conducting these commitment

p. 1705Mr. Maurice S. Pipkin - Page 3 (MU-483)

hearings. As noted, the duty to conduct these hearings was imposed upon the judge by the foregoing statutes. Consequently. weconclude that he is not legally authorized to charge these fees. See Nueces County v. Currington. supra (unless a fee is provided by G for an official service required tobeperformed andthe amount thereof fixed by lav, none can lawfully be charged therefor); McCalla v. City of Rockdale, 246 S.W. 654 (Tex. 1922). Even if he could lawfully charge such afee. moreover, hewould be obliged, under article XVI. section 61 of the Texas Constitution andarticle 3912k, V.T.C.S., to turn the fee over **to** the county treasury. Wichita County v. Robinson, 276 S.W.2d 509 (Tex. 1954); Binford v. Robinson, 244 S.W. 807 (TeX. 1922); McLennan County v. Boggess, 137S.W. 346 (Tex. 1911). Under the facts before us, therefore, weanswer your question in the negative. SUMMARY

Under the facts before us, a county judge of one county could not enter into a contract with another county to be compensated personally for holding ahearing which heis statutorily required to hold in his capacity as county judge.

JOHNW.FAINTER,JR. First Assistant Attorney General MARK WHITE Attorney General of Texas

RICHARDE. GRAYIII Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVED: OPINIONCOMMITTEE Susan L. Garrison, Chairman Jon Bible Walter Davis Rick Gilpin Patricia Hinojosa JimMoellinger Bruce Youngblood

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