   OFFICE   OF THE ATTORNEY   GENERAL   STATE    OF TEX*S

   JOHN      CORNYN




                                                September     1, 1999



Ms. Susan A. Spataro, C.P.A., C.M.A.                        Opinion No. JC-0102
Travis County Auditor
P.O. Box 1748                                               Re:     Whether the county clerk has a duty to
Austin, Texas 78767                                         collect reimbursements for mental health services
                                                            proceeding costs paid by a county that is not
                                                            responsible for those costs (RQ-1206)


Dear Ms. Spataro:

         Under section 571.018 of the Health and Safety Code, either the county that initiates
emergency detention procedures or, if no such procedures are initiated, the county that accepts an
application for court-ordered mental health services, issues an order for protective custody, or issues
an order for temporary mental health services is generally required to pay the cost of mental health
services proceedings.    You ask whether the county clerk has a duty to collect reimbursements       for
costs actually paid by a county that is not responsible for those costs under the statute. Because no
statutory provision imposes that duty, we conclude that the county clerk does not have a statutory
duty to collect the reimbursements, but that the commissioners court may delegate that responsibility
to an appropriate county official.

         You inform us of the following facts giving rise to your request: The Austin State Hospital,
located in Travis County, serves an area comprising thirty-six counties. Travis County provides
resources to the other counties within this area by conducting hearings or proceedings for individuals
for whom the other counties are financially responsible.          Thus, for each “non-Travis County
application” for involuntary mental health services heard by Travis County Probate Court No. 1,
Travis County pays the required application fee and other costs such as attorney fees, physician
examination    fees, compensation     of corn--appointed     personnel, transportation expenses, and
prosecutor fees. Until 1998, the Travis County Clerk would seek reimbursement for the Travis
County paid costs by sending a bill of costs to the responsible counties. But in 1998, the Travis
County Clerk discontinued this practice believing that she has no duty to seek these costs. See Letter
from Ms. Susan A. Spataro, C.P.A., C.M.A., Travis County Auditor, to Honorable Dan Morales,
Texas Attorney General (Sept. 29, 1998) (on tile with Opinion Committee) [hereinafter “Request
Letter”].

         Section 571.018 of the Health and Safety Code deals with the allocation and collection of
the costs of all hearing or proceedings related to mental health services. SeeTEX.HEALTH&SAFETY
CODE ANN. § 571.018 (Vernon Supp. 1999). Under the statute, these costs include attorney fees,
Ms. Susan A. Spataro, C.P.A., C.M.A.            - Page 2       (X-0102)




physician examination fees, compensation for court-appointed personnel, certain transportation
expenses, judges’ salary supplements and costs, and prosecutor fees. Id. § 57 1.018(c). They are to
be paid by (1) the county that initiates emergency detention procedures under subchapter A
(apprehension of person by a peace officer) or B (judge’s or magistrate’s order for emergency
apprehension and detention) of chapter 573 or (2), if no emergency detention procedures are
initiated, the county that accepts an application for court-ordered mental health services, issues an
order for protective custody, or issues an order for temporary mental health services.             Id.
5 571.018(a)(l), (2). The county responsible for the initial costs of a proceeding as set out above,
is responsible for all subsequent proceeding costs for the person who is the subject of these
proceedings. Id. 5 571.018(b).’ Apatient’s county ofresidence, however, must pay court-approved
expenses incurred for psychiatric evaluation and expert testimony if ordered by the court under
section 574.010. Id. § 571.018(f). Section 574.010 authorizes the court to order an independent
psychiatric evaluation of the proposed patient by a psychiatrist chosen by, and who may testify for,
the patient; and to order the patient’s county of residence to pay for court-approved expenses for
expert testimony ifthe court determines that the proposed patient is indigent. Id. 5 574.010 (Vernon
 1992).

         A county that pays the mental health services proceeding costs as provided above “is entitled
to reimbursement for costs actually paid by the county” from “the patient” or “a person or estate
liable for the patient’s support in a department[al] mental health facility.” Id. 5 571 .018(d) (Vernon
Supp. 1999). The county may not require a person other than the patient to pay any hearing or
proceeding costs, including tiling fees or other court costs imposed by other law, unless it determines
that the costs relate to private mental hospital services or the person charged with the costs is indeed
a person or estate liable for the patient’s support. Id. 5 571.018(i).

         You do not ask about collection of reimbursement for costs paid by a responsible county
from the patient or a person or estate liable for the patient’s support. Rather, you ask about
collection of reimbursement from a county that is responsible for the costs by a county not
responsible for those costs that, nevertheless, pays them. See Request Letter, at l-2. Section
571.018 does not expressly authorize a nonresponsible county to pay for the mental health services
proceeding costs or entitle that county to reimbursements for the costs paid from the responsible
county. See id. $5 571.003(16), (17) (Vernon 1992); 571.018(a)(1)-(2), (f) (Vernon Supp. 1999).
But because you ask only about the county clerk’s duty to collect the reimbursement, we assume,
for the purpose of this opinion, that there is a legal basis for a county that is not responsible for
mental health services proceeding costs under section 571.018 to pay those costs and that entitles
the nonresponsible county to reimbursements for the costs paid from the responsible county.

       As you note, section 57 1.018 does not address how reimbursements are to be collected. Nor
 have we found any other provision that does. More importantly for the purpose of the question


           ‘Senate Bill 539, enacted by the Seventy-sixth Legislature and effective September 1, 1999, amends section
 571.018(b) to provide that “[t]he cmts shall be billed by the clerk of the court conducting the hearings.” See Act of
 May 28, 1999,76th   Leg., R.S., S.B. 539,§   1 (to be codified at TEX. HEALTII & SAFETY CODE ANN. $ 571.018(b)).
Ms. Susan A. Spataro, C.P.A., C.M.A.    - Page 3      (X-0102)




presented, neither section 571.018 nor any other provision that we have found requires the county
clerk to collect the reimbursement to which the county may be entitled. Accordingly, no statute
imposes that duty on the county clerk. Therefore, we conclude that the county clerk does not have
a statutory duty to collect reimbursements to which a county may be entitled for mental health
services proceeding costs actually paid by the county.

         Additionally, the reimbursements are not “court costs,” which the county clerk as clerk of
the probate court may otherwise have a duty to collect from the responsible county. See TEX. GOV'T
CODE ANN. $5 25.00264 (Vernon Supp. 1999) (county clerk as clerk ofprobate court, must “perform
the duties and responsibilities” of that office); 25.0030 (same); Hammonds v. Hammonds, 313
S.W.2d 603,605 (Tex. 1958) (collection of court costs is ministerial act of court clerk); Tex. Att’y
Gen. Op. No. H-1097 (1977) at 3 (county clerk has certain duties with respect to collecting certain
fees as court costs).’ Based on the plain language of section 571.018, the reimbursement amount at
issue is distinct from the mental health services proceeding costs to which it relates.         See
Commissioners Court of Titus County v. Agan, 940 S.W.2d 77,80 (Tex. 1997) (if statutory language
is clear and unambiguous, court must give statute its common everyday meaning).

         Under section 571.018, “the costs for a hearing or proceeding . . shall be paid by” the
responsible county. TEX. HEALTH & SAFETYCODE ANN. 5 571.018(a), (b) (Vernon Supp. 1999).
The costs are owed to the court or other persons for expenses and services related to the mental
health proceedings. Id. § 571.018(c); see also Westech Eng’g, Inc. Y. Clear-water Constructors, 835
S.W.2d 190, 206 (Tex. App.-Austin        1992, no writ) (“costs” usually refer to fees and charges
required by law to be paid to the courts or some of their officers). And more significantly, they are
the obligations of the responsible county. TEX. HEALTH & SAFETYCODE ANN. 9 571.018(a), (b)
(Vernon Supp. 1999); see also Tex. Att’y Gen. Op. No. JM-1234 (1990) at 4 (statute provides that
county to bear cost of mental health proceedings).      The costs are collected, and that obligation
satisfied, when the responsible county pays them. Thereafter, no court costs remain outstanding for
the clerk of the court to collect. Cf: TEX. R. CIV. P. 129; Tex. Att’y Gen. Op. No. H-1097 (1977)
at 3.

         It is only when the mental health services proceeding costs are paid that the county “is
entitled to reimbursement for costs actually paid by the county” under section 571.018. TEX.
HEALTH& SAFETY CODE ANN. 5 571.018(d) (Vernon Supp. 1999) (emphasis added). This amount
is owed to the county, rather than the court or third persons and is the obligation of the patient or
person or estate liable for the patient. Id. Thus, the reimbursement obligation by definition follows
payment of the court costs and is a separate obligation from the obligation to pay the court costs.
Accordingly, although the county clerk as clerk of the probate court may have a duty to collect the
mental health services proceeding costs as court costs, that officer has no duty to collect the
reimbursements to which a county may be entitled after having paid those costs.
Ms. Susan A. Spataro, C.P.A., C.M.A.     - Page 4      (JC-0102)




         In sum, in the situation you ask about, the reimbursement         obligation is owed by the
responsible counties to Travis County. As you inform us, although Travis County is not responsible
for the court costs, it pays them on behalf of the responsible counties. Irrespective ofwhich county
pays those costs, they have been paid. No costs remain outstanding for the county clerk as clerk of
the Travis County Probate Court No. 1 to collect. But as the payor of those costs, Travis County is
then due and may be entitled to seek reimbursement for the paid costs from the responsible counties.
Consequently, the reimbursements are not amounts that the Travis County Clerk as the clerk of the
Travis County Probate Court No. 1 is required to collect as court costs, but simply amounts owed
to Travis County by other counties.

         Although we conclude that the county clerk has no statutory duty to seek reimbursement for
the mental health services costs paid by Travis County, the county commissioners            court may
delegate the reimbursement      collection function to an appropriate county officer.        When the
legislature does not assign a county function to a particular county offtcial, a commissioners court
may delegate that function to an appropriate county official. In Agan, the Texas Supreme Court
considered whether a county commissioners court exceeded its authority in transferring the payroll
preparation responsibilities from the county treasurer to the county auditor. The court, noting that
“[tlhe budgetary decision to transfer the payroll preparation responsibilities to the County Auditor’s
office is a legislative function for which the Commissioners Court receives broad discretion[,]”
concluded that the commissioners court did not exceed its authority. Agan, 940 S.W.2d at 81. The
court stated: “Because the Legislature has not assigned payroll preparation responsibilities, the
 Commissioners     Court acting in its legislative capacity may delegate the responsibilities to an
 appropriate county official.” Id. The court also concluded that the county auditor is an appropriate
 county official because that officer has statutory authority to perform the clerical functions
 associated with payroll functions. Id. But the court also noted that another statute, referencing
 “county officer” authorized by the commissioners court to administer payroll deduction, suggests
 that anyone the commissioners court authorizes would have the authority to administer the payroll.
Id.

         The legislature has not assigned to any county official the responsibility to collect the
reimbursement     for mental health services proceeding costs to which a county is entitled under
section 571.018 of the Health and Safety Code. We believe the delegation of that responsibility is
a legislative function of the commissioners court similar to the delegation of the payroll preparation
responsibilities at issue in Agan. Accordingly, the commissioners court acting in its legislative
capacity may delegate that responsibility to an appropriate county official. Agan, 940 S.W.2d at 8 1.
And it is for the commissioners court in the first instance to determine who is the appropriate county
official, subject to judicial review. Id.

        In short, because no statutory provision imposes that duty, we conclude that the county clerk
does not have a statutory duty to collect the reimbursements to which a county may be entitled for
mental health services proceeding costs actually paid by the county. The reimbursement amounts
are not court costs that the county clerk as clerk of the probate court may otherwise have a duty to
Ms. Susan A. Spataro, C.P.A., C.M.A.      - Page 5      (K-0102)




collect. But the commissioners     court may delegate the reimbursement   collection responsibility   to
an appropriate county official.

                                         SUMMARY

                        The county clerk does not have a statutory duty to collect the
                reimbursements to which a county may be entitled for mental health
                services proceeding costs actually paid by the county, but the
                commissioners    court may delegate that responsibility         to an
                appropriate county official.




                                              4c
                                                Yo   s very truly


                                                      CL-

                                                JOI!N    CORNYN
                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Sheela Rai
Assistant Attorney General - Opinion Committee
