Case Information

*1 The Attorney General of Texas July 5. 1982

MARK WHITE

Attorney General Mr. Maurice S. Pipkin Opinion No. MU-483 Supreme Court Building Executive Director P. 0. BOX 12546 State Commission on Judicial Conduct Re: Authority of county Austin. TX. 78711. 2546 P. 0. Box 12265. Capitol Station to receive fees for 5121475~2501 78711 Austin. Texas commitment hearings Telex 9101674.1367 Telecopier 51214759266

Dear Mr. Pipkin: 1607 Main Sl.. Suite 1400

You ask whether: Dallas. TX. 75201-4709 214l742.8944 a county of one county may enter into contract with another 4624 Alberta Ave.. Suite 160 from public funds for holding hearings El Paso. TX. 79905.2793 on temporary commitments to an institution of the 9151533.3464 Texas Department of Mental Health and Mental Retardation. 1220 Dallas Ave.. Suite 202 Houslon. TX. 770026986 Article 5547-31, V.T.C.S., provides in part as follows: 7 131650.0666 .8Wl747~5230 Broadway. 806 Suite Lubbock. TX. 79401.3479 with the county Hospitalization proposed A SWO73l patient of a proposed patient may be filed court of the county resides Application or in which for in which the patient Temporary the found or in which patient by court order. (Emphasis added). 4309 N. Tenlh. Suite B McAllen. TX. 78501-1665 512l662-4547 Article 5547-33. V.T.C.S.. provides in part that: When Application Temporary 200 Main Plaza. Suite 400 Hospitalizat:tn filed, San Antonio. TX. 78205-2787 312,225.4191 a hearing fourteen (14) days filing Application. An Equal OppOrtunityI Attirmative Aclion Employer provides in part that:

A sworn Petition indefinite of a person to a mental hospital may be filed with court the‘ county- in which proposed is hospitalized, from which he is temporarily committed. or the county in which he resides or found. (Emphasis added).

D. 1704 *2 - Page 2 (bfw-483)

Mr. Maurice S. Pipkln reads as follows: When a Petition and the required Certificate Examination for Mental Illness Medical I see V.T.C.S. art. 5547-421 are filed, judge for a hearing 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. The judge in question is the constitutional county within which a Texas county Department of Mental Health and Mental Retardation [hereinafter MHMR] several neighboring facility is located. This facility serves counties. In 1979, this county informed these counties that his workload was such that he could “no longer hold commitment hearings [counties other than his own].” By this, he apparently longer conduct subsequent commitment meant that he would no proceedings involving patients who are originally committed to ‘the Shortly thereafter, however, he MMR facility from other counties. 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 comirment hearings in question were filed in the county in which the judge regularly serves, I.e.6 in which the NRMR facility located; not in the counries from which the patients were committed. Thus, fee agreements were obviously predicated judge’s conclusion that he is under no legal obligation cowmitmenr proceedings involving patients committed from other counties, even when an application filed in his county, but that he may voluntarily agree to do so for a fee. As we shall explain, this conclusion was erroneous.

Under articles 5547-31 and 5547-41. a commitment application may be filed in the county in which the proposed patient is hospitalized. When such application filed,’ to V.T.C.S. arts. 5547-33, 5547-43. Thus, when the schedule a hearing. applications continued commitment patients who were in the HRMR facility located in the judge’s county were judge assumed a duty to hold a commitment filed in that county, hearing, as his county was the one “in which [was] hospitalized.” V.T.C.S. arts. 5547-31, 5547-41. He could not refuse to perform this duty as county judge and insist that he be as “special judge.” See Nueces County v. compensated therefor Currington, 162 S.W.2d 687 (Tex. 1942).

Ue are aware of no constitutional or statutory provision which would authorize this judge, acting as county judge or “special judge,” to receive compensation conducting *3 Mr. Maurice S. Pipkin - Page 3 (MU-483)

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

Under the facts before us, therefore, the negative.

SUMMARY Under the facts before us, a county judge of one county could not enter into a contract with another

holding a hearing which he is statutorily to hold in his capacity as county judge.

MARK WHITE Attorney General of Texas JOHN W. FAINTER, JR.

First Assistant Attorney General

RICHARD E. GRAY III

Executive Assistant Attorney General

Prepared by Jon Bible

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Susan L. Garrison, Chairman

Jon Bible

Walter Davis

Rick Gilpin

Patricia Hinojosa

Jim Moellinger

Bruce Youngblood