Hon. Wm. N. Hensley                OpInIon No. v-597
Criminal District Attorney
San Antonio, Texas                 Re: The payment from Coun-
                                       ty funds of fees of
                                       attorneys appointed by
                                       the court to represent
                                       the defendant In lunacy
                                       cases.
Dear Sir:
          Reference Is made to your recent request which
reads, In part, ,a8 follows:
              "On M&h   9,  1948, we received a
         request for an opinion from the County
         Auditor In regard to payment of attor-
         ney's fees by the County In lunacy cases
         under Article 5550, R.C.S. A copy of,
         this request Is enclosed.
              .~"On:AprIi7, 1948, we rendered our
         opinion No. E-103 thereon, answering
         said request In the affirmative to the
         effect that the attorney's fee provided
         by law could be paid out of C,oun$yPu&zds.
         A copy of this opinion Is enclosed.
              "The CoirntyAuditor now wants us to
         secure an opinion from you on the same
         question, not being completely sat&fied
         that we have settled the law thereon.
              "Ue, therefore, respectfully refer
         his request to you, together with our
         opinion therton, and we desire your opln-
         Ion thereto.
                The request of the County Auditor Is, In part,
as   follows:


              1(OnMarch 29th, the Commissioners'
         Court passed an order approving the
1.                                                ,,‘,.,
                                                     -
     ax                                           ea,
          Hon. Wm. N. Hensley, page 2   (v-597)


               claim of Lester L. Klein, Attorney at
               Law, In the amount of $15.00 and auth-
               orized me to draw Voucher Warrant In
               payment of same.
                    "This claim of Mr. Klein Is for
              representing defendants In three lunacy
              cases at $5.00 per case, he having been
              appointed by Hon.,Chas. J. Matthews,
              Judge County Court at Law No. 2, actlng~.
              for Chas. W. Anderson, County Judge Bexar
              County,~Texas.. Article 5550, Vernon's
              Texas Statutes authorizes the County
              Judge to appoint council In lunacy cases
              'at a fee not to exceed $5.00 per case &
              be taxed as cost In the case.
                    "This statute does not say that
              this fee shall be paid by the County
              from County funds. It appears to me
              that If there Is no other Statute auth-
              orlzlng this fee td be paid from Coun-
              ,ty funds that It wduld be paid If and
              when the cost were collected In each
              case.
                    "Does the Statute permit th$s fee
               to be paid from Count,yfunds?"    ',
                    Article 5550, Vi C. S., Is as follows:
                    "The cause shall be docketed on
               the probate docket of :the.CourtIn the
               uame of the State of Texas as plaintiff,
               and the person charged to be Insane as
               defendant. The County Attorney or the
               District Attorney In counties having no
               County Attorney, shall appear and repre-
               sent the State on the hearing, and the
               defendant shall also be entitled to COUH-
               sel; and In proper cases the County Judge
               may appoint counsel for that purpose.
                    "In cases In which the County Judge
               may deem It necessary to appoint counsel
               for the defendant, such appointment shall
               be noted upon the docket giving the name
               of the attorney so appointed, and In cases
               In which the County Judge deems It neces-
8,   .




          Hon. Urn.H. Hensley, page 3   (v-5971


               sary a fee may be allowed to counsel
               for the defendant In such sum as may
               be fixed by the County Judge, and noted
               on the docket, In an amount not to ex-
               ceed Five Dollars ($5,00), to be taxed
               as coats In the case.
                   Artlhle 4316, V. C. S., provides that:
                   "When any person IS found to be of
              unsound mind or to be an habitual drunk-
              ard, the cost of the proceeding shall be
              paid out of his estate; or, If his es'-
              tate be InsuffIcIent to pay the aame, such
              costs shall be paid out of the county
              treabury, and the judgment of the court
              shall be accordingly. If the defendant
              be discharged; the person at whose In-
              stance the proceeding was had shall pay
              the costs of such proceeding; unless the
              Informant be an officer acting In his of-
              ficial cap&Ity in filing the Information,
              In which cash the costs shall be paid out
              of the county treasury.n
                   we assume that a fee of $5.00 was allowed by
         the County Judge In each case.
                    Article 5550 provides that such fee shall be
          taxed as costs. Article 4316 provides how costs shall
          be paid In lunacy,cases. Since both the foregoing stat-
          utes relate to lunacy oases, they must be oonsldered to-
         .~getherIn regard to the taxing of costs. When this Is
          done, and In view of the plain language of Article 4316,
          It is our opinion that If In such a trial the person Is
          found to be of unsound mind, such fee should be paid out
          of his estate. But if his estate be Insufficient, then
          It should be paid out of the county treasury. If the
          defendant be discharged, then the fee should be paid by
          the person at whose Instance such proceeding was had,
         .unless the Informant be an officer acting within his of-
          ficial oapaclty In filing the complaint, In which case
          the costs shall be paid out of the county treasury.
                                SUMMARY

                   In a lunacy case where the defen-
              dant was found to be Insane and the Coun-
              ty Judge appointed an attorney to repre-
1.   .




         Hon. Wm. H. Hensley, page 4   (v-597)


             sent defendant and allowed.an attorney's
             fee, the fee should be paid out of defen-
             dant's estate as part of the costs of suit.
             If his estate Is Insufficient the attor-
             ney's fee should be paid out of the County
             Reasury as part of the posts. If the de-
             fendant was discharged, then the fee should
             be paid by the person at whose Instance
             such proceeding was had, unless the Infor-
             mant be an offloer acting within his offl-
             clal capacity In filing the complaint, In
             which case the costs shall be nald out of
             the County ~easurY.   Articles-5550 and
             4316, V. c. 3.
                                            Your8 very truly,
                                       ATTORNEY GENERAL OF TEXAS



                                       BY
         BA:erc:w
                                            AssIst+nt


                                       APPROVED;:
