                                                                 R-119




Hon. H, A. Hodges                    Opinion No. V-86
County Auditor
Williamson County                    Re:   When two doctors examine
Georgetown, Texas                          and certify their findings
                                           to the county judge, or
                                           Court, as to the sanity of
                                           a person, are they entitled
                                           to any fee to be paid by the
                                           county? And a related
                                           question.
                                                                          ‘,
Dear Sir:

         Your letter of February 11, 1947, in which you requested
an opinion of this Department, is in part as follows:

          -1. When two Doctors examine and certify their
    .findings to the County Judge, or Court, as to the sani-
     ty of a person are they entitled to any fee to be paid
    by the County? .

         “2. In-the event the County Judge requests the
    Doctors to make an examination of an insane person
    is the County then obligated to pay them a fee - the
    usual charge of the Doctors being $lO.OO? *

      :  Articles    3193, 3193a, 3193e and 31930-1, V.A.C.S.,   are in
part as follows:.

            “Art, 3193.   Who may be’admitted.

          -A person alleged to be insane, and who is ,not
    held on a criminal charge, may be committed to and
    confined in an institution for the custody and treat-
    ment of the insane and of other persons suffering from
    mental illnesses upon an order made by a county judge
    of the county.in,which the alleged insane person re-
    sides or may be! adjudging such person to be insane,
    upon a certificate of insanity made by two properly
    qualified and licensed physi,cians, accompanied by a
    verified petition therefor, or upon such certificate and
    petition and>after a hearing to determine such ques-
    tion, as hereinafter provided. o .w
Hon. H. A. Hodges - Page 2                           Opinion No. V-66



         “Art, 3193,a. Necessary    certificate.

         “No person shall be committed to any institution
    for the treatment of the insane and other.mentally ill
    persons, unless there has been filed with the cot&y
    judge a certificate of the insanity of such person by
    two properly qualified and licensed physicians, nor
    without an order therefor, signed by the county judge,
    stating that he finds that the person committed is in-
    sane, and is a proper subject for treatment in a hos-
    pital for the insane, and either that he has been an
    inhabitant of the State for the six months immediately
    preceding such time or that provision satisfactory to
    the Board of Control has been made for his mainte-
    nance, or that by reason of insanity he would,be dan-
    gerous if at large. The order of commitment shall
    also authorize the custody of the insane person sith-
    er at the institution to which he shall first be com-
    mitted or .at some other institution to which he may
    be transferred by order of the Board of Control. Nei-
    ther of the physicians mentioned in this section shall
    be a relative of the person applying for the order, or
    of the person alleged to be insane, nor shall he be a
    manager, superintendent, proprietor, officer, stock-
    holder, or have any pecuniary interest, directly or
    indirectly, or be an attending physician in the institu-
    tion to which it is proposed to commit suck alleged
    insane per son”                         *

         “Art. 3193e.   Certificate of physicians.

          “If a person is found by two properly qualified
     and licensed physicians to be in such mental condition
     that his cexnmitment to an inrtitutisn for the treat-
    ment of the insane and other mentally ill persons is
    necessary     for his proper care or tibaervation, he may
    be committed      by the county judge to a State Hospital
     for thirty-five days pending the determinationof his
     insanity; within thirty days after such commitment,
     the superintendent of the institution to which the per-
     son has been committed shall ,discharge him if he is
     not insane, and shall~notify the judge who committed
     him, or if he is insane he shall report the patient’s
    .mental condition to the judge with the recommenda-
     tion that he shall be committed as an insane person
     or discharged to the care of his guardian, relatives,
     or friends, if he is harmless and can properly be
     cared for by them, within the said thirty-five days,
     the committing judge may authorime a discharge as
Hon. H. A. Hodges - Page 3                        Opinion No. V-86



     aforesaid, or he may commit the patient to the insti-
    tution as an insane person, if, in his opinion, such
    commitment is necessary.     If in the opinion of the
    judge, additional medical testimony as to the mental
    condition of the alleged insane person is .desirable,
    he may appoint a physician to examine and report
    thereon.”

         “Art. 31930-l.  Temporary commitment by coun-
    ty court without jury trial; apprehension and com-
    mitment.

         “Section 1. (a) If information in writing and
    under oath be given to any County Judge that any per-
    son in his county who is not charged with a criminal
    offense, is believed to be mentally ill, and that the
    welfare of himself and/or others requires that he be
    placed in a State hospital for the mentally ill for not
    exceeding ninety (90) days for observation and/or
    treatment, and such County Judge shall believe such
    information to be true, he shall forthwith, in term-
    time or vacation, fix a day and place for the hearing
    and determining of the matter, which place shall be
    either in the Courthouse of the county, or at the resi-
    dence of,the person named, or at any other place in
    the county,, as the County Judge may deem best for
    such person and shall give notice to such person of
    the time and place of such hearing. If, upon the hear-
    ing of such matter, two (2) reputable physicians au-
    thorized by law to practice medicine in the State of
    Texas, neither of whom is on the staff of any Texas
    State Hospital, and each of whom has examined the
    person alleged to be mentally ill within the preced-
    ing five (5) days of said hearing, shall swear that in
    each of their professional opinions such person is
    mentally ill, is neither feebleminded, an idiot, an
    imbecile, nor an epileptic, and that in his opinion
    such person should be temporarily committed for
    observation and/or treatment to some State hospital
    authorized by law to care for and treat mentally ill
    persons, and if thereupon the County Court finds that
    such person should be temporarily committed to a
    State hospital for observation and/or treatment, he
    shall so state in his order of commitment which
    shall be entered upon the minutes of said Court and
    a writ of commitment issued thereupon committing
    said person temporarily for observation and/or
    treatment to some State hospital authorized by law
    to care for and treat mentally ill persons. . .”
    Hon. H. A. Hodges - Page 4                             Opinion No. V-86



              In each of the above quoted Articles you will note that it
    is mandatory that the County Judge require a certificate of the in-
    sanity of said person by two properly qualified and licensed phy-
    sicians be filed before he may be committed by the County Judge
    to the State Hospital.

              If the application, which is pending before the County
    Judge involves a final judgment or a proceeding looking to a final
    judgment, with respect to insanity and the commitment is a tem-
    porary commitment, the County Judge is governed by Articles
     3193, 3193a and 3193e, supra.

             If, on the other hand, the application for admission to a
    State hospital involves merely a proceeding for temporary ad-
9   mission for observation, then’we look to Article 31930-1, supra,
    and are governed by the provisions of that particular Article.   In
    either instance, however, it is readily seen that it is incumbent
    upon the County Judge that he require the two doctors’ certifi-
    cates.

             In order to ascertain whether or not the doctors who ex-
    amine the patient who is mentally ill may be paid by the county
    for making such examination and executing the certificates, we
    must look to the statutes and see if there is any authority, either
    expressly or by implication, for such payments.

             Article   3193c, V.A.C.S.,    is in part as follows:

              “The reasonable expense for board, lodging, medi-
         cal care, nursing, clothing and all other necessary ex-
         penses incurred by the county health officer under this
         section, shall be allowed by the commissioners’ court
         and paid out of the general fund of the county.”

              The last sentence of Article 319311, V.A.C.S.,        which per-
    tains to ‘mental patients is as follows:

              ‘Reasonable expenses incurred for the examina-
         tion of the patient and his transportation to ‘the insti-
         tution shall be allowed by the commissioners’ court
         and paid out of the general fund of the county in which
         the patient resides or may be at the time of applica-
         tion.”

             Article   2351, V.A.C.S.,    provides in part as follows:

              “Each commissioners         court shall:
     .
.’



         Hon. H. Ai Hodges - Page 5                          Opinion No. V-86



                  ‘Il.’ Provides for the support of paupers and
             such idiots ,and lunatics as cannot be admitted into
             the 1unat~i.casylum, residents of thei,r county, who
             are unable to support themselves.    By the term resi-
             dent as used herein, is meant a person who has been
             a bona fide inhabitant of the county not less than six
             months and of the State not less than one year,“,

                 Article   4279 and Article   4280 provide as follows:

                  “Art. 4279.

                  “Where the person of unsound mind or habitual
             ~drunkard has no estate of his own, he shall be main-
             tained:

                  .“l. By the husband or wife of ‘such person, if
                       able to do so.

                  “2. By the father or mother of such ‘person, if
                      able to do so.

                  -3.   By the children and gran&hildren    of such
                        person, if able to do so.

                  -4.   By the county in which said person has his
                        residence,”

                  “Art. 4280.

                   “The expenses attending the confinement of an
              insane person shall be paid by the guardian out of
              the estate of the ward, if he has an est&e; and‘if he
             has none, such expense shall be paid by the person
             ,bound ,to provide for and support such .insane per-
              son; and, if not so paid, the county shall pay the
              same.”

                   It is clearly seen from the above quoted Articles that if
         the person, who has been adjudged of unsound mind or who is
         mentally ill, has an estate or if there is some person who is le-
         gally liable for the support and maintenance of such person, then
         the expenses attending the confinement, shall be paid out of the
         estate of such insane person; and if he has no estate, such ex-
         pense shall be paid by the person who is legally liable for the
         support of such insane person; and if not so paid, the county shall
         pay the same.

                  Therefore,    since it is mandatory that the certificates   be
                                                                                     ,



Hon. H. A. Hodges      - Page   6                           Opinion   No. V-86



filed; and furthermore,    fnasmuch as the statute spacificrllg     pro-
vides that if there are,no persons     legally liable for the support of
such insaue person, or if the insane person has no estate, then the
county shall pay the same, you ate respectfully        advised tham
the opinion of this Department that fht doctors making such exami-
nation and executing the certificates     mq 1egaIIy be paid a reason-
able fee for such services    rendered,    said fee to be determined    by
the Commissioners’      Court of said county.

          Artic,le   4281, V.A.C.S.,   provides     as follows:

           *In all Cases of appropriations  out of the county
     treasury for the support and confinement      of any per-
     son of unsound mind or habitual drunkard, the amount
     thereof may be recovered     by the county from the es*
     tam of such person, or from any person who, by Iaw,
     is bound to provide for the support of such person, if
     there be any such person able to pay for 6arne.I

          In view of the foregoing statute, if an appropriation  is
made out of the county treasury for confinement     of any person of
unsound mind, the amount may be recovered       by the county from
the estate of such person, or from any peP~B~*who by law is bound
to provide for the support of said person, if there be any said per-
son able to pay for same.


                                 SUMMARY

           When two doctors examine and certify their find-
     ings to the County Judge, or Court, as to the sanity ef
     a person, they are entitled to a reasonable  fee, which
     shall be paid by the County if there is no person IagaIly
     liable for the support of such insane person, and who is
     able to so provide or if the insane person has no estate
     of his own. (Arts, 3193-3193~~ 3193a-1, 3193c, 3193g,
     4279 and 4281, V.A.C&)

                                           Yours     very truly

                                       ATTORNEY        GENERAL    OF TEXAS       ’
APPROVED



                                                  Bruce Allen.
                                                  Assistant

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