*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GENALS C. MANN ATTORNEY GENERAL

Honorable Wartelle McDonald District Attorney Big Spring, Texas

Dear Sir:

Opinion No. 0-1529 Re: Where a county does not have a county attorney, may the district attorney be paid fees for handling lunacy cases:

Your request for an opinion on the above stated question has been received by this department.

Your letter reads, in part, as follows:

"The 70th Judicial District of Texas is composed of five counties, one of which is class-cook County. This County has no County Attorney, at the last legislature a bill passed concerning upon the District Court civil and criminal jurisdiction over all cases previously handled by the County Court. However the County Court retained its jurisdiction over probate and lunacy matters.

"Prior to my election at District Attorney I have represented this county in all lunacy matters for which they have paid me a fee. Since becoming District Attorney they have requested me, and I have represented this county in one lunacy matter since the first of the year, for which they sent me a fee of $10.00.

"I have this $10.00 and would like to know what to do with it."

Article 5550, Vernon's Civil Statutes, regarding Judicial proceedings in lunacy cases reads, in part, as follows:

*2 Honorable Kartelle McDonald, Page 2 "The cause shall be docketed on the probate doeket of the court in the name of the state of Texas as plaintiff, and the person oharged to be insane as defendant. The county Attorney or the District Attorney in counties having no county Attorney, shall appear and represent the state on the hearing, and the defendant shall also be entitled to counsel; and in proper cases the county judge may appoint counsel for that purpose."

Article 5561, Vernon's Civil Statutes, reads as follows: "In such bases the officers shall be allowed the same fees as are now allowed for similar services performed in misdemeanor cases, and the jurors shall each be allowed a fee of one ( $\$1.00$ ) Dollar, to be paid out of the estate of the defendant if he have an estate, otherwise by the county on accounts approved by the County Judge."

Article 3912e, Vernon's Civil Statutes, provides: "No district officer shall be paid by the state of Texas any fees or commission for any service performed by him * * ***

Article 3886f, Vernon's Civil Statutes, reads, in part, as follows: "Section 1. From and after January 1, 1936, in all Judicial Districts in this state the District Attorney in each such district shall receive from the state as pay for his services the sum of Four Thousand Dollars ( $\$4,000$ ) per year, which said Four Thousand Dollars ( $\$4,000$ ) shall include the five Hundred Dollars ( $\$500$ ) salary per year now allowed such District Attorneys by the Constitution of this State; providing that in all Judicial Districts in this state composed of two (2) or more counties in one (1) of which such counties there is a city containing the population of not less than ninety thousand $(90,000)$ inhabitants according to the last preceding Federal Census, the District Attorney of

*3 Eonorable Martelle Molonald, Page 3

such Distriot shall reoel ve from the state as pay for his services the sum of five Thousand five Fundred Dollars ( 53,500 ) per year, which said Five Thousand five Hundred Dollars ( 55,500 ) small include the five Fundred Dollars ( 5500 ) salary per year now allowed such Distriot attor- ney by the Constitution of this State. Such salary shall be paid in twelve (12) equal month- ly installments upon warrants drawn by the Compe- troller of Fublic Accounts upon the State Treasury. Provided that nothing in this 305 shall be con- strued so as to deprive District Attorneys of the expense allowance allowed or which may here- after be allowed by law. "Beo. 3. All foes, comnissions and per- quisites which may be earned and collected by District attornays affected by this 3 ct shall be paid into the county Treasury of the counties in which such fees are earned for the account of the proper fund. * * *" Section 3 of article 3312e, Vernon's Civil Stat- utes, provides that: "It shall be the duty of all officers to charge and collect in the manner authorized by law all fees and commissions which are permit- ted by law to be assessed and collected for all official service performed by them. * * **