                                      GENERAL




Hon. Doug Crouch                  Opinion No. C- 121
Criminal District Attorney
Tarrant County Courthouse         Re:   Is the County Judge entitled
Fort Worth, Texas                       to,a fee in a Mental Health
                                        case; If so, Is it the duty
                                        of the County Clerk to tax
                                        such as a court cost, or may
                                        it be waived by the County
Dear Mr. Crouch:                        Judge?
          You have requested the opinion of this office concerning
whether the County Judge is entitled to a fee in a Mental Health
case. You further ask if it Is the duty of the County Clerk to
tax this fee as a court cost, or if it can be waived by the County
Judge.
          In 1957 the 55th Legislature enacted the Mental Health
Code, Articles 5547-1, et seq., Vernon's Civil Statutes, to pre-
scribe the method of care and treatment for the mentally ill.
Article 5547-14 therein provides:
          "(a) The county of legal residence of the
     patient shall pay the costs of Temporary Hospltaliza-
     tion, Indefinite Commitment and Re-examination and
     Hearing proceedings, including attorneys' fees and
     physicians' examination fees, and expenses of trans-
     portation to a State mental hospital or to an agency
     of the United States." (Emphasis ours.)
          Article 3926, Vernon's Civil Statutes, provides that the
County Judge shall receive the following fee:
          "2.  . . .For each civil cause finally dis-
      osed of by him by trial or otherwise, Five Dollars
     P$51, . . .‘I




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Hon. Doug Crouch, page 2 (C-121    )


          There is no doubt but that proceedings under the Mental
Health Code are civil in nature because It is the "cause" of re-
straint which determines whether a proceeding Is criminal or civil,
and insanity is not a crime but rather a disease. A proceeding to
commit a mental1 ill person is a civil cause. Ex parte Singleton,
161 S.W. 123, 12t (Tex.Cri.m.1913), and White v. White, lgb S W
508 (Tex.Sup.Ct. 1917). Therefore, ,suchHearing proceedings being
before the Court, the County Judge's fee prescribed by Article 3926
is a proper cost to be taxed in a Mental Health case.
          As regards the taxi.ngof costs, Rule 622, Texas Rules
of Civil Procedure, provides that:
          n . . .The Clerk of the district or county
     court or the justice of the peace, as the case may
     be, shall tax the costs In every case In which a
     final judgment has been rendered and shall issue
     execution to enforce such judgment and collect such
     costs. . . a"
          In Beaumont Irrigating Co. v. DeLalne, 173 S.W. 514, 516
(Tex.Civ.App. 1914) the Court held that:
          "The matter of taxing the costs in any case
     is imposed as a duty on the clerk alone; . . .'
And in 1958, the Texas Supreme Court in Hammonds v. Hammonds, 313
S.W.2d 603, 605 said that:
          "The taxing of costs is a ministerial act of
     the clerk and, if erroneous, upon proper motion
     will be corrected by the Court."
          Therefore, it Is the duty of the clerk to so tax the
County Judge's fee of Five Dollars ($5) in a Mental Health case.
          Concerning waiver of such fee by the County Judge, there
is no authority for waiver of a statutory fee, and in fact there
are numerous prohibitions for either falling to charge up or re-
mitting fees. For example, Article 102 of Vernon's Penal Code
expressly makes such a misdemeanor by providing:
          "Any county officer or any district attorney
     to whom fees or costs are allowed by law who shall
     fail to charge up the fees or costs that may be due
     under existing laws, or who shall remit any fee that
     may be due under the laws, or who shall fail to make




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Hon. Doug Crouch, page 3 (C- 121 )


     the report required by law, or who shall pay his
     deputy, clerk or assistant a less sum than specified
     in his sworn statement, or receive back as a rebate
     any part of the compensation allowed such deputy,
     clerk or assistant, shall be fined not less than
     twenty-five nor more than five hundred dollars. Each
     act forbidden by this article Is a separate offense.*
             Article 3912e, Section 5, Vernon's Civil Statutes, pro-
vides:
          "It shall be the duty of all officers to charge
     and collect in the manner authorized by law all fees
     and commissions which are permitted by law to be as-
     sessed and collected for all official service performed
     by them."
          In addition, Article I, Section 28 of the Texas Con-
stitution recites:
          "NO power of suspending the laws shall be
     exercised except by the Legislature."
We would also point out previous opinions by this office on the
question of waiver of statutory fees and the uniform holding
that there Is no power to waive prescribed fees. See Attorney
y;;;;~l's Opinions Nos. O-6754 (1946), O-6600 (1945) and 0-6323
         .
          Therefore the prescribed fee for the County Judge may
not be waived.

                            SUMMARY
          In a Mental Health case, the County Clerk
     must tax as a cost of the case a Five Dollar
     ($5) fee for the County Judge authorized by Ar-
     ticle 3926, V.C.S., and this fee may not be
     waived by the County Judge.
                                      Very truly yours,
                                      WAGGONER CARR
                                      Attorney General


PP:wb:mkh                             By&qAssistant
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                                       --   .




Hon. Doug Crouch, page 4 (C-121 .,)-
                                   "


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank Booth
Bob Flowers
Ernest Fortenberry
John Reeves
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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