                                 The Attorney                       General of Texas
                                                             July   5.   1982
MARK WHITE
Attorney General

                               Mr. Maurice S. Pipkin                                       Opinion     No.      MU-483
Supreme Court Building
                               Executive   Director
P. 0. BOX 12546
Austin. TX. 78711. 2546
                               State Commission on Judicial    Conduct                     Re:  Authority     of county judge
5121475~2501                   P. 0. Box 12265. Capitol   Station                          to receive    fees   for temporary
Telex 9101674.1367             Austin.   Texas      78711                                  commitment hearings
Telecopier  51214759266

                               Dear Mr. Pipkin:
1607 Main Sl.. Suite 1400
Dallas. TX. 75201-4709              You ask whether:
214l742.8944
                                              a county     judge   of one county     may enter    into   a
                                              contract     with   another   county  to be compensated
4624 Alberta Ave.. Suite 160
El Paso. TX. 79905.2793                       personally     from public   funds for holding    hearings
9151533.3464                                  on temporary      commitments to an institution      of the
                                              Texas    Department     of  Mental   Health    and Mental
                                              Retardation.
1220 Dallas Ave.. Suite 202
Houslon. TX. 770026986
7 131650.0666                       Article       5547-31,     V.T.C.S.,        provides     in part    as follows:

                                                  A       SWO73l      Application                 for     Temporary
806 Broadway. Suite312                        Hospitalization      of a proposed             patient  may be filed
Lubbock.   TX.   79401.3479
                                              with the county       court of the              county  in which the
.8Wl747~5230
                                              proposed     patient   resides    or         in which the patient
                                              is   found    or in which        the          proposed    patient    is
4309 N. Tenlh. Suite B                        hospitalized      by court order.              (Emphasis added).    -
McAllen. TX. 78501-1665
512l662-4547
                                    Article       5547-33.     V.T.C.S..        provides     in part    that:

200 Main Plaza. Suite 400                         When                   Application        for         Temporary
San Antonio. TX. 78205-2787                   Hospitalizat:tn          is filed,     the county      judge     shall
312,225.4191                                  set    a date        for   a hearing       to  be     held      within
                                              fourteen        (14)      days     of    the   filing        of     the
An Equal OppOrtunityI                         Application.
Attirmative Aclion Employer
                                    Article       5547-41.     V.T.C.S.,        provides     in part    that:

                                              A sworn Petition        for the indefinite     commitment
                                          of a person to a mental hospital          may be filed    with
                                          the    county    court    of   the‘ county-    in which     the
                                          proposed    patient    is hospitalized,      the county   from
                                          which he is temporarily          committed.    or the county
                                          in   which    he    resides     or  is   found.      (Emphasis
                                          added).



                                                                         D. 1704
Mr. Maurice        S.   Pipkln   - Page 2     (bfw-483)




       Article      5547-43.     V.T.C.S.,    reads      as follows:

                     When a Petition     and the required   Certificate      of
                 Medical      Examination    for   Mental    Illness      I see
                 V.T.C.S.    art. 5547-421 are filed,     the county judge
                 shall    set a date for a hearing      to be held within
                 thirty    (30) days of the filing    of the Petition....

        The briefs          and correspondence          submitted     to this office        indicate
that the relevant             facts   are as follows.          The judge      in question      is the
constitutional             county     judge     of     a county       within      which     a Texas
Department         of Mental Health and Mental Retardation                    [hereinafter       MHMR]
facility         is     located.        This     facility      serves      several      neighboring
counties.          In 1979, this county judge informed                 these counties       that his
workload      was such that he could “no longer                    hold temporary        commitment
hearings       for [counties         other    than his own].”           By this,     he apparently
meant       that       he     would     no    longer       conduct      subsequent       commitment
proceedings          involving      patients      who are originally            committed     to ‘the
MMR facility             from other      counties.        Shortly    thereafter,       however,      he
agreed with other             counties     to hold commitment hearings             involving      such
patients       where the committing             county agreed        to pay him a prescribed
fee     for     holding       them.      The agreement         attempted       CO designate        him
“special      judge.”

       We are     informed      that      the    applications       which     triggered     the
comirment     hearings     in question       were filed      in the county in which the
judge regularly      serves,    I.e.6     the county in which the NRMR facility               is
located;    not in the counries           from which the patients           were committed.
Thus,    the fee agreements         were obviously         predicated     upon the judge’s
conclusion    that he is under no legal             obligation      to conduct      cowmitmenr
proceedings     involving     patients        committed      from other      counties,     even
when an application           is     filed      in  his     county,     but     that    he may
voluntarily     agree    to do so for a fee.                As we shall        explain,    this
conclusion    was erroneous.

       Under articles       5547-31    and 5547-41.       a commitment application          may
be filed     in the county in which the proposed               patient     is hospitalized.
When such      application       is   filed,’     the county      judge     is   required     to
schedule     a hearing.      V.T.C.S.     arts.    5547-33,    5547-43.       Thus, when the
applications      for     the    continued       commitment      of    patients      who were
hospitalized     in the HRMR facility            located    in the judge’s        county were
filed    in that county,        the judge assumed a duty to hold a commitment
hearing,     as his     county    was the one “in which the proposed                   patient
[was] hospitalized.”           V.T.C.S.     arts.     5547-31,   5547-41.       He could    not
refuse     to perform     this    duty as county         judge   and insist       that    he be
compensated      therefor       as “special         judge.”     -See    Nueces      County    v.
Currington,     162 S.W.2d 687 (Tex.          1942).

       Ue are aware of no constitutional       or statutory                    provision    which
would authorize      this county judge, acting   as county                  judge or “special
judge,”    to   receive    compensation  for   conducting                    these     commitment



                                             p.   1705
Mr.   Maurice     S. Pipkin     - Page 3       (MU-483)




hearings.      As noted,     the duty to conduct         these hearings      was imposed
upon the judge by the foregoing             statutes.      Consequently.     we conclude
that he is not legally          authorized     to charge these      fees.     See Nueces
County v. Currington.         supra (unless      a fee is provided        by G    for an
official    service   required     to be performed     and the amount thereof       fixed
by lav,     none can lawfully        be charged     therefor);     McCalla v. City of
Rockdale,     246 S.W. 654 (Tex. 1922).           Even if he could lawfully        charge
such a fee.     moreover,    he would be obliged,         under article     XVI. section
61 of the Texas Constitution           and article     3912k, V.T.C.S.,      to turn the
fee    over   to the county       treasury.      Wichita     County v. Robinson,       276
S.W.2d 509 (Tex.      1954);    Binford v. Robinson,        244 S.W. 807 (TeX. 1922);
McLennan County v. Boggess,           137 S.W. 346 (Tex. 1911).

     Under the        facts     before   us,   therefore,    we answer   your   question   in
the negative.

                                         SUMMARY

                    Under the facts     before  us, a county     judge    of
                one county    could   not enter   into a contract      with
                another   county    to be compensated    personally     for
                holding  a hearing which he is statutorily        required
                to hold in his capacity      as county judge.




                                                        MARK        WHITE
                                                        Attorney   General of   Texas

JOHN W. FAINTER, JR.
First Assistant Attorney             General

RICHARD E. GRAY III
Executive Assistant           Attorney    General

Prepared    by Jon Bible
Assistant    Attorney  General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,            Chairman
Jon Bible
Walter Davis
Rick Gilpin
Patricia   Hinojosa
Jim Moellinger
Bruce Youngblood




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