Case Information

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN B. B. Caudle

HOAOPabh County Attorney

Franklin County

Mt. Vernon, Texas

Dear Sirr Your recent rOA 0' thf.3 ChpCWt-

ment on the quest-ions d has be8A received.

Wo quote from your l:$tt& ~~/follovsr the restoration of findings: that all aost y the County.

asd t?iVil 8tlLtUt6E, that Officepe as are nov al- sdemeanor ts as is con- 'Secondt Is the County Attorney allcwed a fee for participation Fn a hearing on rastora- tiOA of sanity If , under what airaumatanaee?

i "The usual procedure la the party seeking relief come8 to the County AttorAey or the County Judge vho refers him to the County At- torney to draw up the proper affidavit for the doctor to sign. The afffdavit is filed: the County Judge aaks the County Attorney to make an investigation the issue and to be present and to appear aa counsel at the hearing.

"The above aectlon provides that if there appear8 no doubt as said isaue of aanlty the Judge may proceed trg the case vithout the intervention of a jury. The County Attorney took part in the hearing and conaurred vith the Judge that there vas no doubt as to such imue, VhereUpOA the Judge found the party of sound mind and requested the County Attorney to drav up a judgment refleatlng hla deciaiOA.

IA event the County Attorney concurft vith the Judge on the question of the issue of sanity should the County Attorney file a vritten anaver to that effeat. In event the Oountg Attorney doeta not agree with the Judge on the Laaue of sanity and contests saa!e, would the County Attorney be entitled to a fee if the party ia found to be of sound mind?

"In short, when la a County Attorney al- lowed a fee for services In a case under said seation? 5561, above meAtlOAed, ‘In view of Artiale

vhtch allows the same fee aa in misdemeanor ca6ea servlaes lunsay trial, I con- aluded that mame fee ($10.00) Is a prop- er charge for the County Attorney under Sea.

4 of the above article IseAtiOAed herein under the foregoing state of facta, and that the County Judge, County Clerk, Sheriff would entitled to fees fop aeaioer rendered undsr mid Sec. 4."

Seotlona 4 aad Article 556l.a, Vernonts Annotated Civil Statutea, read aa follovar

"Sea. 4. Upon the filing in the oounty court IA vhioh a person var aonvioted or in the aountg court of the county in vhlch a person Is located at the time he is alleged to have had his right mind restored, Lnfor- nitttion iA writing and under oath made by a physiaian legally licensed to practiae medicine Fn Texas, that a pertton not ahapged uith a criminal offense, who has Won adjudged to be of unsound mind, has been restored to his right mi.nd, the judge of said aourt &all forthwith, either in term time vaaatlon, order saFd peraon brought before him by the sheriff of the county and if mid issue be in doubt said judge shall cause juq be swn- moned and lmpaneled IA the same manner aa is provided in Section 3 hereof and ahalf proaeed to the trial of aaid issue, OF if there appears no doubt aa to said issue, maid judge may try the same without the intervention of a jury, and if said person shall be found to be of sound mind, a judgment shall be entered upon the mlnutes said oourt reolting adjudging such faot and said person shall, if then under restraint, be Immediately discharged, or Zn the event he shall be found to be still of unsound If&Ad, he shall be returned by the county aourt to the place of restraint from vhlch he had been prevlously~ordered, and the origin&, otier of aoaaitment shall eontFnue Ln full force effeot, AJ.1 aostr of pwaeed- lngs of restoration shall be paid by the county.

‘Sea. 5. This Aot shell be oumulative of Artfoleu to 5561 lnolnaive of Title 92, Revtaed Civil Statutes of the State of Texas, 1925 revlslon.”

Articles 555Q--556$, inclusive, Vernon’s Annotated Civil Statutea, and the first three section6 of Artlole 556la, provide for the apprehonaion, arrert and trial of persona not oharged with or-1 offems , alleged unsound mind. ft la fuvthel provided in saoh oases that the officer ahall be allowed the same feel a8 are nov alloved for 8imll8F ~errloes paff’ormed misdemeanor aams, and the jurolra shall se& be al- lowed a fee of One Dollar ($l.OO), to be pald out of the estate the defendant if he ha8 an estate, othervlse by the aounty on acaounte approved by the oounty judge. Wia do not think that the above statutee settbg forth the prooedupe mentioned aad therein . Ronorable F. 3. Caudle, Page 4

providing certain compensation for officers have any appllca- tlon concerning or regarding restoration proceedings as men- tioned Ln Section 4 of Article 556l.a.

The manner and method of e restoration proceeding or hearing Is speclflcallg set out in Section 4, quoted above, and no duty 1s imposed upon the county attorney to represent the State ln such a hearing or proceeding. The provision of Section 4, supra, provldlng "all coats of proceeding8 of res- toration shall be paid by the county" 1s vague, uncertain, ad indefinite, We believe the Legislature intended that all costs be paid in such proceedings, however, no method to de- termlne the smount such costs as there Is no is prescribed "yard stick" by which to measure the amount of such costs. We think the provision "all coats of proaeedlngs of restora- tion shall paid by the county" is meaningless, and of no effect.

It must be remembered statutes prescribing fees for public officers are strlctlv construed: and hence a rirrht to fees may not rest in implio~tlon.

McCalle v. City of Rockdale, 246 3. W. 654.

The Constitution fixed the compensation of certain officers snd authorized the Legislature to provide by law for the compensation of all officers, servants, agents and public contraotors. Pursuant to authority thus conferred, numerous statutes have been passed fixing the compensation of various classes 0r orricers. An offlaer may not claim or reach any money without a lav authorizing him to do so, and clearly fixing the amount to which he la entitled. Blnford v. Roblnson, 244 3. W. 807; McLennan County v. Boggess, 217 s. W. 346; Dualoa v. Harris County, 291 3. W. 611, affirmed 3. W. 417; Crosby County Cattle Company v. McDelmett, 281 3. W. 293.

In view of the roregotng, you are respectfully advised that it is the, oplnlon of this department that there is no duty Imposed upon the county attorney to represent the State in such proaeedlngs es provided by Section 4 of Article 5561e, and said statute or any other statute does not provide any fees for the county attorney any other officer conducting such hearings.

Trusting that the foregoing fully ansvers your Inquiry, we are

Yours very truly ATTORREY ORBERAL Ardell Wllll~~~~ Asslstant- AWrRS