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                              October 16, 1990


    Honorable Mike Driscoll      Opinion No.     ~~-1234
    Harris County Attorney
    1001 Preston, Suite 634      Re:   Authority of a county clerk
    Houston, Texas   77002       to collect a fee upon filing of
                                 an application for emergency   de-
                                 tention or court-ordered services
                                 in cases involving mental     com-
                                 petency or chemical dependency,
                                 and related questions    (RQ-2004)

    Dear Mr. Driscoll:

         You ask the following question:

            What fee(s), if any, is the County Clerk
            authorized to collect upon the submission  or
            filing of an application for emergency deten-
            tion or court-ordered     services in   cases
            involving mental competency, chemical depen-
            dency or drug dependency?

         We will first address your question in regard to emer-
    gency detention of mentally   ill persons. Any adult person
    may apply for emergency detention   of another person upon a
    showing that the applicant has reason to believe that the
    subject of the application   is mentally ill and that he or
    she poses an imminent risk of serious harm to himself       or
    others. V.T.C.S. art. 5547-28.     Such an application is to
    be presented to a magistrate, not to the county clerk.    Id.
    art. 5547-28,   5 Cc)*   An   application  for  court-ordered
    mental health services is to be filed with the appropriate
    county clerk. Id. art. 5547-32, 5 (a).

         Section 118.052 of the Local Government Code sets out a
    fee schedule for clerks of county courts. The fee to be
    charged for "mental health services" is $40. It is not
    clear, however, who is responsible for the $40 fee.       To
    answer that question,  it is necessary  to examine the lan-
    guage and history of section 118.055(c) of the Local Govern-
    ment Code.




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Honorable Mike Driscoll - Page 2   (JM-1234)




     Section 118.055(c) of the Local Government Code pro-
vides that the $40 fee for mental health services is for the
services listed in articles   5547-13, 5547-14, and 5547-15,
V.T.C.S.   The substance   of section  118.055(c) was first
adopted in 1967 as part of an act setting out fees to be
charged by county clerks and clerks of county courts.1   Acts
1967, 60th Leg., ch. 600, at 1785. That act stated that
articles 5547-13, 5547-14, and 5547-15 were repealed to the
extent that they were in conflict with the new act. A 1967
opinion of this office concluded that the repealer        was
ineffective because the caption to the bill did not meet
constitutional requirements.   Attorney General Opinion M-135
(1967). In 1977 this office concluded      that whatever  the
case may have been in 1967, a 1977 amendment      of the fee
statute validated the language stating that articles 5547-13
through 5547-15 were repealed to the extent of conflict with
the fee statute. Attorney General Opinion H-1097 (1977).

     The repealing language in the fee statute is trouble-
some since neither the county clerk nor the fees of the
county clerk are specifically mentioned in articles 5547-13,
5547-14, or 5547-15.     Article 5547-13 provided   that the
county or district  attorney was to represent the state    in
hearings on court-ordered   mental health services.   Article
5547-14 stated that counties were to pay for certain mental
health proceedings and that those counties were entitled   to
reimbursement.   Article   5547-15 provided   that appointed
attorneys and physicians were entitled to reasonable compen-
sation, which was to be taxed as costs in the case.

     In any case, Attorney General Opinion H-1097 considered
the combined  effect of the portion    of the fee statute




     1. The constitution provides that the county clerk     is
the clerk for the constitutional county court. Tex. Const.
art. V, 5 20. Section     25.0010(b) of the Government    Code
states that the county clerk shall serve as clerk of each
statutory county court.    See also Gov't Code gg 25.1032(j)
(Harris County Clerk shall keep separate docket for each
county civil court at law), 25.1033(l)        (district clerk
serves as clerk for Harris County criminal courts at law),
25.1034 (Harris County Clerk shall keep separate docket    for
Harris County statutory probate courts).    Consequently,   we
will use the term "county clerk" in this opinion to describe
the Harris County Clerk in all of her roles.




                              p. 6566
Honorable Mike Driscoll - Page 3   (JM-1234)




regarding mental health    services and    articles   5547-13,
5547-14, and 5547-15, and concluded:

           [The fee provision]   sets the clerk's   fee
       in 'each original cause or action          in a
       Probate Court . . . due and payable and to be
       paid by     the party . . . initiating      said
       cause . . . .I    In an action     involving   a
       mentally ill person, the clerk's total fee
       for services   in connection   with proceeding
       under articles 5547-13 through 5547-15 is set
       at $40.00. . . .      [The fee statute] thus
       limits the amount that may be charged        for
       filing a petition, issuing notices,     adminis-
       tering oaths, and       performing  all    other
       clerical duties in connection with the kinds
       of commitment listed in article 5547-14.      If
       the county judge allows compensation to an
       appointed attorney or physician under article
       5547-15, it is taxed as costs in the case,
       and the clerk has certain duties with respect
       to collecting   it. . . . [The fee statute]
       does not attempt to repeal the provisions     of
       the Mental Health Code regarding payment      of
       attorneys* fees, physicians' fees, and tran-
       sportation costs. Since these fees are not
       paid to the clerk, they are unaffected        by
       [the fee statute].

See also Attorney General Opinion M-135   (1967). In other
words, Attorney General Opinion H-1097 determined that any
services of the county clerk in regard to mental      health
proceedings, including the filing of an application, were to
be considered services  listed in articles 5547-13 through
5547-15 and that the total fee for any such services was to
be $40.

     It is significant that Attorney General Opinion  H-1097
did not conclude   that the fee statute had repealed     any
specific language of articles  5547-13 through 5547-15.   If
Attorney General Opinion H-1097 had concluded that specific
portions  of articles   5547-13 through   5547-15 had been
repealed, we would have to consider whether any such por-
tions had been revived,    since articles   5547-13 through
5547-15 were revised and reenacted in 1983 as part of a
substantive revision of the mental health statutes.     Acts
1983, 68th Leg., ch. 47, § 1, at 211 (eff. Sept. 1, 1983).
Fortunately, we have been spared that effort.        Because
nothing in the 1983 revisions calls the conclusion        of




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Honorable Mike Driscoll - Page 4   (JM-1234)




Attorney General Opinion H-1097 into question, those conclu-
sions remain valid.

     Although Attorney  General Opinion H-1097    determined
what services the $40 fee covered, it did not determine from
whom the $40 fee was to be collected.  Although the history
and language of the relevant statutes create some confusion
on this issue, we conclude that the county clerk is not to
collect a fee from the person who submits an application for
emergency detention or court-ordered treatment, but that the
county may seek reimbursement    from the patient   for the
services of the,county clerk in such matters.

     Because no services of the county clerk were actually
mentioned in articles    5547-13 through    5547-15, Attorney
General Opinion H-1097 had to be saying that the $40 covered
services of the county clerk in connection with proceedings
mentioned in those provisions.     It happens    that article
5547-14 provides  that the county is to bear the cost of
mental health proceedings.   Because Attorney General Opinion
H-1097 viewed the services of the county clerk as part of
the mental health proceedings     for purposes    of the fee
statute, it is consistent to interpret the provision     that
the county bear the cost of such proceedings to mean     that
the county is to bear the cost of the clerk's services.    We
conclude, therefore, that under article 5547-14 the county
is to bear the costs of the services of the county clerk    in
regard to mental health proceedings.      m     V.T.C.S. art.
5547-14, 5 (b) (county may seek reimbursement from patient
or person liable for patient).

     It has been suggested,   however, that the person who
submits the application   is to pay the $40 fee because
section 118.055 states that the various court fees to be
collected by the county clerk, including the $40 fee for
mental health  services,  are to be paid by the llpartyll
initiating the action. See also Acts 1967, 60th Leg., ch.
680, at 1785; Acts 1977, 65th Leg., ch. 291, at 763; Acts
1981, 67th Leg., ch. 574, at 2341; Acts 1983, 68th Leg., ch.
101, at 500; Acts 1985, 69th Leg., ch. 180, at 746 (previous
versions of fee statute). This statement is problematic    in
regard to an application for mental health services because
the person who makes the application does not thereby become
a party to a lawsuit. See, e.u., V.T.C.S. arts. 5547-48(3),
5547-13 (county or district attorney   shall represent  that
state in hearings on court-ordered mental health treatment):
see also Texas Farm Bureau Cotton Ass'n v. Lennox, 297 S.W.
743 (Tex. 1927): Doe v. Roe, 600 S.W.2d 378 (Tex. Civ. APP.
- Eastland 1980, writ ref'd n.r.e.) (both cases discussing




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Honorable Mike Driscoll - Page 5   (JM-1234)




meaning of term l*party*'). We need not determine whether the
person submitting an application for mental health   services
is "the party   initiating the action," however, because we
believe that the specific language       in article   5547-14
controls.   In other words, because     the legislature   has
specifically indicated that counties,    at least initially,
are to bear the cost of commitment    proceedings, we do not
think article 118.055 authorizes the county clerk to collect
a fee from the person who files an application for court-
ordered treatment.   The county  is responsible for the cost
of services of the clerk, but it may seek reimbursement from
the patient   or from a person    liable for the patient's
support in a state mental health    facility. V.T.C.S.   art.
5547-14, 5 (b).

     Before we address your question in regard to persons
who are dependent on drugs or alcohol,     it is necessary   to
clarify which statutory provisions      apply.   Before   1989,
commitment procedures for alcoholics were set out in article
5561c-2, V.T.C.S.   Commitment procedures for drug-dependent
persons were set out in article 5561c-1, V.T.C.S.    When the
legislature adopted the Health and Safety Code in 1989, it
repealed those statutes. Renealed by Acts 1989, 71st Leg.,
ch. 678, § 13(l) (eff. Sept. 1, 1989); Acts 1989, 71st Leg.,
1st C.S., ch. 23, 5 16(5)    (eff. Nov. 1, 1989). The provi-
sions regarding commitment of alcoholics were recodified     in
chapter 462 of the Health and Safety Code: those regarding
commitment of drug-dependent persons were moved to chapter
463. Then, in its first called session, the 71st Legisla-
ture, which had repealed articles       5561c-1 and 5561c-2,
repealed article 5561c-1 again and amended article      5561c-2
to cover commitment proceedings    for all "chemically   depen-
dent" persons.    Acts 1989, 71st Leg., 1st C.S., ch. 23,
§ 13, at 54 (hereinafter S.B. 57).

     The repeal of a statute by a code does not affect an
amendment of the statute by the same legislature       which
enacted the code. Gov't Code 5 311.031(c).    The amendment
is preserved and given effect as part of the code provision.
Id. Therefore, the amendments made to article 5561c-2 by
S.B. 57 are to be given effect as part of the Health     and
Safety Code. In other words, the provisions applicable    to
persons dependent on alcohol are now the same as the provi-
sions applicable to persons dependent on other drugs.    The
applicable provisions  are those found in S.B. 57.        To
minimize confusion, we will also cite the section designa-
tions set out in Title 2 of the Texas Alcohol and Drug Abuse
Services Act, as amended by section     13 of S.B. 57, in
discussing the provisions applicable to emergency  detention




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Honorable Mike Driscoll - Page 6    (JM-1234)




of and court-ordered    treatment   for   chemically   dependent
persons.

     An application for emergency detention of a chemically
dependent person is made to a judge or magistrate, not the
county clerk. S.B. 57, Acts 1989, 71st Deg., 1st C.S., ch.
23, 5 13, at 56 (codified at V.T.C.S. art. 5561c-2, 5 2.02(d)).
An application for court-ordered treatment for a chemically
dependent person is made to the appropriate county clerk.
Id. at 58 (codified at V.T.C.S.   art. 5561c-2,  § 3.02(a)).
The following provision applies to the costs of commitment:

           The laws relating to payment of costs of
        commitment   and support, maintenance,    and
        treatment and to securing reimbursement   for
        those actual costs that are applicable     to
        court-ordered mental health, probation,    or
        parole services apply to each item of expense
        incurred by the state or the county        in
        connection with the commitment, care, custo-
        dy, treatment, and rehabilitation of a person
        receiving care and treatment under this Act.

Id. at 68 (codified at V.T.C.S.     art. 5561c-2,   0 5.11(a)).
In other words, that provision    means that the county clerk
is to look to the laws governing court-ordered mental health
services, probation services, or parole services to deter-
mine the fees to be charged upon submission of an applica-
tion for court-ordered treatment    of a chemically   dependent
person.   Because the procedures in regard to an application
for court-ordered mental health treatment closely parallel
the procedures in regard to applications for court-ordered
treatment of a chemically dependent person, we conclude that
the county clerk is to look to the laws governing        court-
ordered mental health treatment     to determine   whether  the
county clerk is to collect a fee from the person who submits
an application for court-ordered    treatment of a chemically
dependent   person.   But see id. 5 5.11(c)       (codified at
V.T.C.S. art. 5561c-2) (county may not pay cost for person
committed to private hospital unless authorized by commis-
sioners court). Se cz n     lly Code Crim. Proc. arts. 42.12,
5 ll(a)(16) (condityoneo?irobation    may include drug   treat-
ment), 42.18, § 8(g) (any condition authorized for probation
also authorized for parole).    Consequently, we conclude that
the county clerk is not to collect a fee from the applicant,
but that the county may seek reimbursement from the patient
or a person liable for the patient's support        in a state
facility.




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Honorable Mike Driscoll - Page 7     (JM-1234)




     You also ask the following question:

           May the Commissioners Court set a fee to
        be collected by the sheriff or constables for
        the transport  of mental health patients   to
        and from private hospital facilities to the
        location where the commitment   hearings  are
        held?

Because the term "proceedings"  in article 5547-14 has been
interpreted broadly, we conclude that sheriffs and consta-
bles may not collect fees directly from patients for trans-
portation to and from commitment proceedings.  The county is
to bear those costs. V.T.C.S. art. 5547-14. The county may
seek reimbursement.  Id.

                       SUMMARY

           The Harris County Clerk is not to collect
        a fee upon submission   of an application    for
        emergency detention or court-order    treatment
        of a mentally   ill person.     The county    is
        responsible for costs of such services,      but
        it may seek reimbursement       from a person
        liable for the patient's    support in a state
        mental   health   facility.    Similarly,    the
        Harris County Clerk is not to collect a fee
        upon submission of an application for emer-
        gency detention or court-ordered treatment of
        a chemically dependent person, but the county
        may seek reimbursement.   Sheriffs and consta-
        bles may not collect      fees directly     from
        patients   for transportation    to and     from
        hearings in regard to court-ordered       mental
        health treatment.




                                 L-L-k
                                    Very truly y



                                    JIM
                                          .


                                            MATTOX
                                                    ,




                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General




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                                                 ,

Honorable Mike Driscoll - Page 8     (JM-1234)




JUDGE ZOLLIE STEAKLRY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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