Untitled Texas Attorney General Opinion ( 1982 )

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
Austin. TX. 78711. 2546
State Commission on Judicial Conduct Re: Authority of county judge
5121475~2501 P. 0. Box 12265. Capitol Station to receive fees for temporary
Telex 9101674.1367 Austin. Texas 78711 commitment hearings
Telecopier 51214759266
Dear Mr. Pipkin:
1607 Main Sl.. Suite 1400
Dallas. TX. 75201-4709 You ask whether:
214l742.8944
a county judge of one county may enter into a
contract with another county to be compensated
4624 Alberta Ave.. Suite 160
El Paso. TX. 79905.2793 personally from public funds for holding hearings
9151533.3464 on temporary commitments to an institution of the
Texas Department of Mental Health and Mental
Retardation.
1220 Dallas Ave.. Suite 202
Houslon. TX. 770026986
7 131650.0666 Article 5547-31, V.T.C.S., provides in part as follows:
A SWO73l Application for Temporary
806 Broadway. Suite312 Hospitalization of a proposed patient may be filed
Lubbock. TX. 79401.3479
with the county court of the county in which the
.8Wl747~5230
proposed patient resides or in which the patient
is found or in which the proposed patient is
4309 N. Tenlh. Suite B hospitalized by court order. (Emphasis added). -
McAllen. TX. 78501-1665
512l662-4547
Article 5547-33. V.T.C.S.. provides in part that:
200 Main Plaza. Suite 400 When Application for Temporary
San Antonio. TX. 78205-2787 Hospitalizat:tn is filed, the county judge shall
312,225.4191 set a date for a hearing to be held within
fourteen (14) days of the filing of the
An Equal OppOrtunityI Application.
Attirmative Aclion Employer
Article 5547-41. V.T.C.S., provides in part that:
A sworn Petition for the indefinite commitment
of a person to a mental hospital may be 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).
D. 1704
Mr. Maurice S. Pipkln - Page 2 (bfw-483)
Article 5547-43. V.T.C.S., reads as follows:
When a Petition and the required Certificate of
Medical Examination for Mental Illness I see
V.T.C.S. art. 5547-421 are filed, the county judge
shall set a date for a hearing 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. The judge in question is the
constitutional county judge of a county within which a Texas
Department of Mental Health and Mental 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].” By this, he apparently
meant that he would no longer conduct subsequent commitment
proceedings involving patients who are originally committed to ‘the
MMR facility 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 in which the NRMR facility 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 no legal 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 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 is filed,’ the county judge is required to
schedule a hearing. V.T.C.S. arts. 5547-33, 5547-43. Thus, when the
applications for the continued commitment of patients who were
hospitalized in the HRMR facility located in the judge’s county were
filed in that county, the judge assumed a duty 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. He could not
refuse to perform this duty as county judge and insist that he be
compensated therefor as “special judge.” -See Nueces County v.
Currington, 162 S.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. 1705
Mr. 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. we conclude
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 to be performed and the 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 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 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, 137 S.W. 346 (Tex. 1911).
Under the facts before us, therefore, we answer 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 a hearing which he is statutorily required
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
p. 1706