,.




                              NE      GENE
                               EXAS




                      June 30, 1953

     Hon. James A. Bethea, M.D.   Opinion NO. s-61
     Executive Director
     Board for Texas ,StateHospi- Re: Legality of a District
       tals and Specia.1Schools       Att,orneyreceiving a
     Austin, Texas                    10% cornmIssionon col-
                                      lecti,onson anyaccount
                                      due for board and treat-
                                      ment when payments are
                                      to be made in monthly
                                      installments under sub-
     Dear Dr. Bethea:                 mitted contracts.
                Your opinion request of May 27th concerns the
     legality of a District Attorney receiving a 10% commis-
     sion on cpllections on an account due for board and
     treatment when payments are to be made in monthly install-
     ments~under the submitted contract.
               The District Attorney of Hill County filed suit
     under Article 31,96a,Vernon's Civil Statutes, on behalf
     of the State,,acting through the Board of Texas State
     Hospitals and Special Schools against the guardian of
     a State hospital patient for $6,540.00 due the State for
     board and treatment of the patient. In consideration of
     the State dismissing its pending suit against the guardian,
     the guardian agreed that the above amo~untwas due the
     State, that $l,OOO.OO should be paid immediately on the
     account. and that $rO.OO would be paid each month to ap-
     ply on the balance of the above amount due the State.
                Section 5 of Artiale 3196a, V.C.S., reads as
     follows:
              "Upon the written request of the State
         Board of Control the.County or Dis,trictAt-
         torney, or in case of the refusal or inability
         of both to act, the Attorn,eyGeneral, shall
         repre~aentthe State in filing a claim in
         Probate Court ora petition in a Court of
         competent jurisdiction, wherein the guardian
         of such patient and/or other person legally
Hon. James A. Bethea, page 2 (s-61)


     liable for his supp,ort,may be cited to
     appear then and there to show cause why the
     State should not have Judgment against him
     or them for the amount due it for the sup-
     port, maintenance, and treatment of such
     patient; and, upon sufficient showing,
     judgment may be entered~against such guardian
     or other persons for the amount found to be
     due the State, which j,udgmentmay be enforced
     as in other cases. A verified account, sworn
     to by the superintendent of the respective
     hospitals or psychopathic hospitals wherein
     such patient is being treated,~or has been
     treated, as to the amount due shall be suf-
     ficient evidence to authorize the Court to
     render judgment therein. The County or Dis-
     trict Attorney representing the Statueshall
     be entitled to-a commission of ten (10) per
     cent, of the amount collected. All moneys so
     collected, les,s.s'uch
                          commis,slon,,~
                                      shall be,
     by the said attorney, paid to the State Board
     of Control, which shall receive and receipt
     for the same and shall use the same for the
     maintenance and improvement of said institu-
     tion or institutions in which said patient
     shall have been confined,"
          This article clearly authorizes the District At-
torney to represent the State in filing a claim, and pro-
vides that such District Attorney shall be entitled to a
commission of lO$ of the amount collected.
          There being no q,ue,stion
                                  raised concerning the
right of the District Attorney under the above mentioned
statute to receive a 10% commission on the $l,OOO.OO when
collected, we come to your inquiry whether he is entitled
to such commission on the $10.00 to be paid monthly on
the balance of the amount due the State under the con-
tract.
          It is clear, we think, that a District Attorney
receives commissions only on the amount actually col-
lected. Therefore, it is our opinion that a District At-
torney would be entitled to a 10% of the $10.00, or so
much thereof as may be actually collected, each month,
when it has been paid in money to some officer authorized
by law to collect it.
Hon. James A. Bethea, page 3 (s-61)


          Section 5 of Article 3912e,,V.C.S., provides
that it is the duty of officers to charge ,and collect
such commissions, and further states that "as and when
such fees are collected they shall be deposited in the
offIcerat salary fund. . .' Alao see Tex. Const. Art.
XVI, Sec. 61.


         'The District Attorney of Hill County
     will be entitled to receive 10% oommiasion
     on the $10.00 to be paid monthly on a
     State hospital board and treatment account
     due the State, as provided in a contract
     with the guardian of a patient, when the
     $10.00 is actually collected, such commis-,
     sion to be depos~itedin the County Officers'
     Salary Fund of Hill County.
                                 Yours very truly,
APPROVED:                        JOHN BEN SHEPPERD
                                 Attorney General
Rudy G. Rice
State Affairs Divis$on
C. K. Richards
Reviewer                              William M. King
                                              Assistant
Burns11 Waldrep
Executive Assistant
John Ben Shepperd
Attorney General
