   OFFICE   OF THE ATTORNEY   GENan*L   ST/ITE   OF TEXC

   JOHN CORNYN




                                                 August 10, 1999



The Honorable David M. Motley                              Opinion No. JC-0088
Kerr County Attorney
County Courthouse, Suite BA-103                            Re:     Assessment of filing fees for medication
700 Main Street                                            petition hearings held pursuant to section 574.106
Kerrville, Texas 78028                                     of the Health and Safety Code (R@OO19)


Dear Mr. Motley:

        You have asked this office to interpret section 574.106 ofthe Texas Health and Safety Code,
which mandates a hearing before the involuntary administration of psychoactive medication to a
mental patient. We consider the question of whether a medication hearing under section 574.106
is a separate and distinct action, or is merely derivative of the original commitment action for the
patient. In our view, the medication hearing, which is not ancillary to all commitment actions,
which involves the abrogation of a different substantive right as well as involving different issues
and evidence, and which is triggered by an application separate from the application for court-
ordered mental health services, is a distinct action. As such, the assignment to it of a separate cause
number, as well as the attendant filing fees, do not, as Bexar County argues, impermissibly assess
an additional fee in an original action.

         As we understand the background to your question, Kerr County and Bexar County both
contain state mental hospitals. Some residents of each county have been involuntarily committed
to the hospital located in the other county; such commitments, pursuant to subchapter C of chapter
574 of the Health and Safety Code, require a hearing to determine whether the proposed patient is
mentally ill, and as a result is likely to cause serious harm to himself or others, or is suffering severe
distress, is experiencing deterioration ofhis ability to function, and is unable to make a rational and
informed decision as to whether to submit to treatment. See TEX. HEALTH & SAFETYCODE ANN.
 $5 574.034, ,035 (Vernon Supp. 1999). By interlocal agreement Bexar and Kerr Counties have
contracted to hold these hearings for each other in the case of patients resident in one county who
are committed to a hospital in the other.

        Besides commitment hearings, the Health and Safety Code also mandates hearings before
psychoactive medications may be administered to an involuntarily-committed     patient who refuses
them, unless the patient is “having a medication-related emergency.” Id. $574.103. Such hearings
are to be conducted on the record by the probate judge or judge with probate jurisdiction, id.
5 574.106(c), or by a magistrate or court-appointed master with training regarding psychoactive
medications, id. 5 574.106(d). A record is not required if the hearing is before a magistrate or
The Honorable    David M. Motley    - Page 2     (.Jc-0088)




master. Id. However, a party may appeal a magistrate or master’s report within three days of its
issuance, and in that case is entitled to a hearing de novo by the judge. Id. 5 574.106(e).

         For the court to authorize the involuntary administration of psychoactive medication to a
patient, it must find that he has been committed pursuant to section 574.034 or 574.035 and lacks
the capacity to make a decision concerning the administration of the medication and that treatment
with the medication is in his best interest. Id. 5 574.106(a). The court is to consider the patient’s
preference with respect to the medication, his religious beliefs, the risks and benefits of the
treatment, the consequence of not administering the medication, the prognosis for the patient if it is
administered, and alternatives to treatment with the medication. Id. 8 574.106(b).

         As we understand it, Bexar County has taken the view that medication hearings “are
derivative of the original commitment”         and are consequently    not original actions. Letter
from Magdalena L. DeSalme, Assistant Criminal District Attorney, Bexar County, to Honorable
John Comyn, Attorney General (Feb. 23,1999) (on tile with Opinion Committee). Accordingly, in
its view a separate tiling fee for the medication hearing is unwarranted.

         Bexar County’s argument relies upon Attorney General Opinion DM-174, in which this
office held that a county clerk could not charge a tiling fee for a release of judgment executed
pursuant to section 31.008 of the Civil Practice and Remedies Code, because “[tlhe procedure
authorized by section 31.008        is not an original or separate cause of action, but is merely
derivative of the original action   _” Tex. Att’y Gen. Op. No. DM-174 (1992) at 2. In our view,
however, reliance upon Attorney General Opinion DM-174 is inapposite here.

         Attorney General Opinion DM-174 concerned section 3 1.008 of the Civil Practice and
Remedies Code, which permits a judgment debtor who does not know the location of the judgment
 creditor to pay the amount of the judgment to the clerk of the court, which amount is held in trust
 for the judgment creditor. The judgment debtor thereupon prepares a recordable release of the
judgment, which is executed by the clerk of the court and issued to the debtor. See TEX. CIV. PRAC.
 &REM. CODE ANN. 5 3 1.008 (Vernon 1997). Attorney General Opinion DM-174 took the view that
 the county clerk could not charge a tiling fee in connection with the execution of the release, because
 the procedure was not an original or separate cause of action. See Tex. Att’y Gen. Op. No. DM-174
 (1992) at 2.

        A hearing on the issue of whether an involuntarily-committed         patient may be medicated
against his will is different in kind from the release of a judgment debt in a case already adjudicated.
The execution of the release requires no determination of rights or consideration of evidence; it
merely provides a method for the judgment debtor to satisfy an already-existing judgment. In that
sense, it is clearly “derivative of the original action on the underlying debt.” See id.

        While a medication     hearing only occurs when a patient has been involuntarily committed,
see TEX. HEALTH & SAFETY CODE ANN. 4 574.106(a)                (Vernon Supp. 1999), it requires the
adjudication    of a separate legal right, namely the right not to be subjected to medication against
The Honorable David M. Motley      - Page 3      (JC-0088)




one’s will. Under section 574.106, that right may only be abrogated after the proceeding in question
has been held and the statutory factors have generally been considered. See, e.g., In re R.S.C., 921
S.W.2d 506,514 (Tex. App.-Fort Worth 1996, no writ).

        Further, the statute explicitly provides that the application pursuant to which the hearing
occurs is “separate from an application for court-ordered mental health services.” TEX. HEALTH&
SAFETYCODE ANN. 5 574.104(c) (Vernon Supp. 1999). An involuntary medication application is
tiled by a physician treating a patient on behalf of the state. See id. 5 574.104(a). The physician
may tile the application “in a probate court or a court with probate jurisdiction.” Id. The statute
does not specify in which county the application should be filed. It may be tiled in the county of the
original involuntary commitment hearing, and it may not. We do not believe such a proceeding,
brought pursuant to a separate application and concerning a distinct substantive right, can be
analogized to the essentially ministerial execution of the release contemplated by section 3 1.008 of
the Civil Practice and Remedies Code.

        Accordingly, we conclude that, because medication hearings pursuant to section 574.106 of
the Health and Safety Code adjudicate different rights than and consider different issues and
evidence than commitment hearings pursuant to section 574.034 or 574.035 of the same code, and
require a separate application to the court, the assignment to such hearings of separate cause numbers
and the tiling fees attendant thereon do not impermissibly charge more than one fee for a single
action.
The Honorable   David M. Motley     - Page 4        (~~-0088)




                                        SUMMARY

                         Because medication hearings pursuant to section 574.106 of
                the Health and Safety Code adjudicate different rights than and
                consider different issues and evidence than commitment hearings
                pursuant to section 574.034 or 574.035 of the same code, andrequire
                a separate application to the court, the assignment to such hearings of
                separate cause numbers and the tiling fees attendant thereon do not
                impermissibly impose fees in an original action.



                                                   Yo    s ve    truly


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                                                   Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee
