        THEATTORNEY              GENERAL
                    OF   TEXAS




Honorable Doug Crouch            Opinion No. C-295
District Attorney
Tarrant County                   Re:   In a mental health case,
Fort Worth, Texas                      can the trial judge prop-
                                       erly direct the patient
                                       and his family not to pay
                                       the $5.00 statutory judge's
                                       fee listed on the cost bill
                                       for such case and related
Dear Mr. Crouch:                       question.
          You have requested the opinion of this office in regard
to the following two questions concerning costs in a mental health
case:
         "(1) In a mental health case, can the
    trial judge properly direct the patient and
    his family not to pay the $5.00 statutory
    judge's fee listed on the cost bill for such
    case?
          '"(2) 1n a mental health case, can the
     trial judge orooerlv dire?t the countv clerk
     to tax the $5-06 statutory judgess fee against
     the county treasurer?"
          Prior to the enactment of the Mental Health Code,
Articles 5547-l to 5547-104, Vernon's Civil Statutes, the fol-
lowing statutes governed the taxing and payment of costs of a
Hearing in a mental health case: Article 5550, Vernon's Civil
Statutes; Article 5561, Vernon's Civil Statutes; and Article
4316, VernonOs Civil Statutes. These statutes provided that
Officerss, jUPOPS" and attorneys' fees be taxed as costs and
paid out of the patientus estate, but if such estate Is lnsuf-
ficient, said costs were to be paid by the county.
          In 195T9 when the 55th Legislature enacted the afore-
said Mental Health Code, it expreasly repealed Articles 5550 and
5561. Article 5547-103, therein, provides:
Hon. Doug Crouch, page 2 (C-295)


         "The following Statutes and Acts, together
    with all laws or parts of laws In conflict here-
    with, are hereby repealed:
         II
          . . .
         "Revised Civil Statutes of Texas, 1925,
    Article 5550, as amended, Acts 1937, Forty-
    fifth Legislature,Chapter 445, Section 1;
        .Article5561, as amended, Acts, 1929,
    jorty-firstLegislature,First Called Session,
    Chapter 101, Acts, 1933,,,Forty-thirdLegisla-
    ture, Chapter 200; . . .
          Article 4316 had previously, in 1955, been incorporated
by the 54th Legislatureinto Section 247 of the Probate Code,
Vernon's Civil Statutes. The 55th Legislaturedid noteIncorporate
Article 4316 into the Mental Health Code. However, the 55th
Legislature provided, in Article 5547-100, the applicabilityof
the Mental Health Code, to-wit:
          "This Code applies to any conduct, trans-
     action or proceeding within its terms which
     occur3 after th   ff ti    dt    f this Code,
     . . .   (Emphas~seou~~)ve a e '
Therefore, one must look to the provisions of the Mental Health
Code when seeking to determine matters that fall within its
terms.
          There is a specific subdivisionof the Mental Health
Code that governs costs in a Mental Health proceeding. Article
5547-14 states:
      atieilaihaThecounty of legal residence of the
                n pay the costs of Temporary Hospi-
      allzatlons Indefinite Commitment and Re-examina-
     tion and Hearing proceedings,Including attorneys'
     fees and physicians' examination fees, and expenses
     of transportationto a State mental hospital or to
     an agency of the United States.
          "(b) FOP the amounts of these costs actually
     paid, the county is entitled to reimbursementby
     the patient or any person or estate liable for his
     support, in a State Hospital," (Bnphasis ours)
It is significantto note that the Legislature changed the primary
burden of costs from the patient and his estate to the county.

                            -1411-
.   -




        Hon. Doug Crouch, page 3 (C-295)


                  The statutory judge's fee is a part of the costs of
        the Hearing proceedings. See Attorney General's Opinion No.
        c-121(1963).
                  The order of a judge directing a patient and his
        family not to ay the statutory judge's fee* in opposition to
        subdivision (b7 of Article 5547-14, has the effect of suspending
        the law. Such an act, by a member of the judiciary, is in viola-
        tion of the Constitution. Article I, Section 28 of the Texas
        Constitutionstates:
                 'NO power of suspending the laws shall
            be exercised except by the legislature."
                  The duty of a member of the judiciary is to make the
        law effective,not to suspend it. The Supreme Court in the case
        of Turner v. Cross, a3 Tex. 218,la S.W. 578 (la92),  stated the
        duty of a court as follows:
                       .It is the duty of a court to administer
            the law as it is written, and not to make the law;
            and however harsh a statute may seem to be, or
            whatever may seem to be its omissions courts can-
            not on such considerationsby constructionsustain
            11 s 0 era
            it does not apply, without assuming functions that
            pertain solely to $he legislativedepartment of the
            government. . . .     (Emphasisours]
        The Dallas Court of Civil Appeals reiterated this statement of
        a courts8 dut in the case of Sharp v, Jester, 239 S.W. 655 (Tex.
        Civ.App. 1922T at page 658:
                 "Courts are the agency by which the law
            is made effective--merelythe servants of the
            law, charged with the duty, mot to make a law
            to their liking by forced constructioneither
            to give a remedy not provided for or to with-
            hold one secured, but to ascertain and enforce
            the law as created by the legislativepower of
            the state. Therefore the duties of and limita-
            tions on the powers of the judiciary are as
            important to be observed by courts as it is that
            the people should bow to the majesty of the law.
            Both must concur to secure a harmonious and
            satisfactoryenforcementand observance of the
            lawm



                                    -l412-
Hon.   Doug Crouch, page 4 (C-295)


          An examinationof subdivisions(a) and (b) of Article
5547-14 reveals that it is proper for the judge to adjudge the
statutory judge's fee against the county as said fee is a part
of the Hearing proceedings. The county then has the right of
reimbursementagainst the patient or any person OP estate liable-
for his sup ort for the amount of the costs actually paid. Sub-
division (aP clearly states that "The county of legal residence
shall pay the costs.' Subdivision (b) states that the county
is entitled to reimbursementby the patient or any person or
estate liable for his support." (Emphasis ours). This statute
'isnot ambiguous. It is susceptibleof but one meaning, to-wit:
the county shall pay the costs, having the right of reimbursement
against the patient and those liable for his support. As to the
necessity for constructionof a statute, see 53 Tex.Jur.2d,173,
Statutes, Sec. 123 and cases cited therein:
            "Resort may be had to the canons of
       constructionwhen necessary to determine the
       meaning of an ambiguous statute. Rut a court
       will not assume to construe or Interpret a
       statute if there Is no necessity for it to do
       so, that is, If the statute is susceptibleof
       but one construction.
            "There is nq room for constructionwhen
       the law is expressed in plain and unambiguous
       language and its meaning is clear and obvious.
       In such a case the law will be applied and en-
       forced as It reads, regardless of its policy
       or pu$pose, or the justice of Its effect.
       a . .
          Since the 55th Legislature specificallyenacted the
Mental Health Code, one must look to its provisions when seeking
to determinematters that fall within its terms, Article 5547-14,
i:L ;;d(J~ of said Code governs the matter ,ofcosts In a mental
              Subdivision (a) states that the county shall pay
the costs oh the hearing proceedings. Subdivision (b) states
that the county is entitled to reimbursementfrom the patient or
those liable for his support. Therefore, It is improper for a
judge to suspend the law by directing a patient and his family
not to pay the costs in opposition to Article 5547-14 (b).
However, it is proper for the court to adjud e the statutory
judge's fee against the county as Article 55&7-14 (a) states that
the county shall pay the costs of the Hearing proceedings.




                              -1413-
.   -




        Hon. Doug Crouch, page 5 (C-295)


                            SUMMARY
                 In a Mental Health case, a judge is not
            authorized to direct a patient and his family
            not to pay the statutory judge's fee; however,
            the court can adjudge the statutory judge's
            fee against the county.
                                      Very truly yours,
                                      WAGGONW CARR
                                      Attorney General



                                       " ~FloyB. Johnson
                                          Assistant
        RBJ:mkh
        APPROVED:
        OPINION COMMITTEE
        W. V. Geppert, Chairman
        John Reeves
        Gordon Houser
        Ralph Rash
        Cecil Rotsch
        APPROVRD FOR THE ATTORNEY GENERAL
        BY: Stanton Stone




                                  -1414-
