MS 2020-09-T-Odom-August-31-2020-Payment-of-Attorneys-Fees-in-Commitment-Proceedings August 31, 2020

Who pays the lawyer when a Mississippi chancery court appoints counsel for someone facing private-facility commitment for drugs or alcohol?

Short answer: The AG concluded that in Mississippi alcohol and drug commitment proceedings to private facilities under Section 41-32-5, attorney fees for court-appointed counsel had to be paid by the non-indigent respondent or the respondent's estate, and never by the petitioner.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Plain-English summary

Chancellor Troy Farrell Odom asked the AG to settle a payment question that the commitment statutes themselves do not directly answer. Mississippi has parallel commitment regimes for alcoholics and drug addicts: Section 41-31-5 covers commitment to public institutions, and Section 41-32-5 covers commitment to private treatment facilities. Both regimes require the chancellor to appoint an attorney for the respondent before holding a hearing if the respondent does not already have counsel. Neither statute spells out who pays the attorney's fees.

The Rankin County Chancery Court had been assessing those attorney's fees against the petitioner (the person who filed the commitment papers, often a family member), classifying them as court costs. The chancellor wanted to know if that practice was correct.

The AG looked sideways at the public-institution commitment scheme, Section 41-21-61 et seq., to find a complete cost-allocation rule for the public-facility track. Section 41-21-79 says the costs incidental to a court proceeding (court costs, prehearing hospitalization, transportation, physician/psychologist/nurse practitioner/physician assistant fees, and reasonable attorney's fees, all set by the court) are paid out of the funds of the county of the respondent's residence when the patient is indigent (unless the state appropriates the money). When the respondent is not indigent, those costs are taxed against the respondent or the respondent's estate. The total cost cap is $400. Section 41-21-65(6) caps the chancery clerk's filing fees and assessments at $150 and explicitly says the costs incidental to court proceedings under Section 41-21-79 "may not be charged to the affiant nor included in the fees and assessments permitted under Section 41-21-65(6)."

Applying the in pari materia canon (statutes on the same subject matter should be read together), the AG borrowed those allocation rules for the private-facility track too. The result: appointed counsel's fees in a Section 41-32-5 commitment must be paid by the non-indigent respondent or the respondent's estate, not by the petitioner. The AG explicitly stated that the office found "no authority for a court to assess the petitioner (affiant) for the costs of legal counsel appointed pursuant to Section 41-32-5(2)."

Two technical observations the AG flagged. First, the cost cap and the filing-fee cap are separate buckets ($400 incidental costs versus $150 filing fees). Second, the prohibition on charging the affiant is express in Section 41-21-65(6) and the AG carries it across to the private-facility setting via in pari materia.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Why does this question even arise?

Because Section 41-32-5(2) requires appointed counsel but does not say who pays. When a statute is silent on a financial question, courts and AG opinions sometimes look to parallel statutes that handle the same problem in a related context. That is what the AG did here.

What is in pari materia?

A canon of statutory construction. The AG quotes Lopez v. Holleman, 69 So. 2d 903 (Miss. 1954), and a 1995 AG opinion (Taylor) for the rule that "statutes or statutory provisions that relate to the same person or thing, or to the same class of persons or things or appear to be indicative of a general policy on a cognate subject matter are regarded as in pari materia." Translation: read them together.

Why can't the petitioner be charged?

Because Section 41-21-65(6) explicitly says the incidental costs of the court proceedings under Section 41-21-79, including reasonable attorney's fees, "may not be charged to the affiant." The AG carries that protection into the private-facility regime by reasoning that the two commitment statutes share the same general policy.

Who pays if the respondent is indigent?

Under the public-facility regime, the answer is the county of residence (unless the state has appropriated the money). The AG opinion does not directly say what happens for an indigent respondent in a private-facility commitment, but the in pari materia logic would push toward the same answer.

Is there a dollar cap?

Yes, under Section 41-21-79: total costs incidental to the court proceedings cannot exceed $400. Filing fees and assessments under Section 41-21-65(6) cannot exceed $150 and are a separate bucket.

Background and statutory framework

Section 41-32-5(2) requires appointment of counsel for respondents in private-facility commitment proceedings.

Section 41-31-5 is the parallel public-institution version of the same requirement.

Neither statute specifies who pays the appointed lawyer.

Section 41-21-61 et seq. governs commitments to public treatment facilities. Section 41-21-79 contains the cost-allocation rule:

The costs incidental to the court proceedings including, but not limited to, court costs, prehearing hospitalization costs, cost of transportation, reasonable physician's, psychologist's, nurse practitioner or physician assistant's fees set by the court, and reasonable attorney's fees set by the court, shall be paid out of the funds of the county of residence of the respondent in those instances where the patient is indigent unless funds for those purposes are made available by the state. However, if the respondent is not indigent, those costs shall be taxed against the respondent or his or her estate. The total amount that may be charged for all of the costs incidental to the court proceedings shall not exceed Four Hundred Dollars ($400.00). Costs incidental to the court proceedings permitted under this section may not be charged to the affiant nor included in the fees and assessments permitted under Section 41-21-65(6).

Section 41-21-65(6) caps clerk's filing fees and assessments at $150 and reinforces the bar on charging the affiant for incidental costs.

Lopez v. Holleman, 69 So. 2d 903 (Miss. 1954), and MS AG Op., Taylor (July 10, 1995), provide the in pari materia rule.

The opinion is signed by Special Assistant Attorney General Phil Carter on behalf of Attorney General Lynn Fitch.

Citations

Miss. Code Ann. Section 41-31-5 (public-institution commitment)
Miss. Code Ann. Section 41-32-5 (private-facility commitment)
Miss. Code Ann. Section 41-21-61 et seq. (public-institution commitment generally)
Miss. Code Ann. Section 41-21-63 (jurisdiction)
Miss. Code Ann. Section 41-21-79 (cost allocation)
Miss. Code Ann. Section 41-21-65(6) (filing fee cap)
Miss. Code Ann. Section 25-7-9 (general fee schedule)
Miss. Code Ann. Section 37-26-3 (Court Education and Training Fund)
Miss. Code Ann. Section 37-26-9(4) (State Court Constituent's Fund)
Lopez v. Holleman, 69 So. 2d 903 (Miss. 1954)
MS AG Op., Taylor at *3 (July 10, 1995)

Source

Original opinion text

August 31, 2020

The Honorable Troy Farrell Odom
Chancellor, Twentieth Chancery Court District
Post Office Box 700
Brandon, Mississippi 39043

Re: Payment of Attorney's Fees in Commitment Proceedings

Dear Chancellor Odom:

The Office of the Attorney General is in receipt of your request for the issuance of an official opinion.

Question Presented

May the chancery court assess, to the petitioner, costs of counsel appointed pursuant to Mississippi Code Annotated Section 41-32-5(2)?

Background

Mississippi Code Annotated Section 41-31-5 pertains to the proceedings that follow a petition for the commitment of alcoholics and drug addicts to public institutions for treatment. Section 41-32-5(2) pertains to the proceedings that follow a petition for the commitment of alcoholics and drug addicts to private treatment facilities.

Subparagraph (2) of each statute requires a chancellor to, before a hearing may be held on the commitment petition, appoint an attorney to represent respondents who do not otherwise have an attorney. Miss. Code Ann. §§ 41-35-5(2), 41-32-5(2). Both statutes are silent as to who is responsible for the payment of those court-appointed attorneys' fees. It is the position of the Rankin County Chancery Court, however, to assess those attorneys' fees to the petitioner, classifying such charges as court costs.

Brief Response

The Court may assess, to a non-indigent respondent or his/her estate, the costs of legal representation incurred by an attorney appointed to represent the respondent in proceedings related to alcohol and/or drug commitment to either a public or private facility.

We find no authority for a court to assess the petitioner (affiant) for the costs of legal counsel appointed pursuant to Section 41-32-5(2), relating to commitment to private treatment facilities.

Applicable Law and Analysis

As a general rule, statutes or statutory provisions that relate to the same person or thing, or to the same class of persons or things or appear to be indicative of a general policy on a cognate subject matter are regarded as in pari materia. Lopez v. Holleman, 69 So. 2d 903 (Miss. 1954); MS AG Op., Taylor at *3 (July 10, 1995).

Recognizing that there appears to be no statutory provision designating who should be assessed the expenses for the services of an appointed attorney in commitment proceedings to private institutions, we are of the opinion that Section 41-21-61 et seq., applicable to commitments to public institutions, is indicative of legislative intent on a cognate subject matter and is, therefore, applicable to commitment proceedings to private institutions.

Section 41-21-63 provides, in relevant part:

(1) No person, other than persons charged with crime, shall be committed to a public treatment facility except under the provisions of Sections 41-21-61 through 41-21-107 or 43-21-611 or 43-21-315.

...

(2)(a) The chancery court, or the chancellor in vacation, shall have jurisdiction under Sections 41-21-61 through 41-21-107 except over persons with unresolved felony charges unless paragraph (b) of this subsection applies.

Section 41-21-79 provides:

The costs incidental to the court proceedings including, but not limited to, court costs, prehearing hospitalization costs, cost of transportation, reasonable physician's, psychologist's, nurse practitioner or physician assistant's fees set by the court, and reasonable attorney's fees set by the court, shall be paid out of the funds of the county of residence of the respondent in those instances where the patient is indigent unless funds for those purposes are made available by the state. However, if the respondent is not indigent, those costs shall be taxed against the respondent or his or her estate. The total amount that may be charged for all of the costs incidental to the court proceedings shall not exceed Four Hundred Dollars ($400.00). Costs incidental to the court proceedings permitted under this section may not be charged to the affiant nor included in the fees and assessments permitted under Section 41-21-65(6).

Section 41-21-65(6) states:

The chancery clerk may charge a total filing fee for all services equal to the amount set out in Section 25-7-9(o), and the appropriate state and county assessments as required by law which include, but are not limited to, assessments for the Judicial Operation Fund (Section 25-7-9(3)(b)); the Electronic Court System Fund (Section 25-7-9(3)(a)); the Civil Legal Assistance Fund (Section 25-7-9(1)(k)); the Court Education and Training Fund (Section 37-26-3); State Court Constituent's Fund (Section 37-26-9(4)); and reasonable court reporter's fee. Costs incidental to the court proceedings as set forth in Section 41-21-79 may not be included in the assessments permitted by this subsection. The total of the fees and assessments permitted by this subsection may not exceed One Hundred Fifty Dollars ($150.00).

Miss. Code Ann. § 41-21-65(6) (emphasis added).

Costs incidental to the court proceedings as set forth in Section 41-21-79 include reasonable attorneys' fees. These fees, pursuant to Sections 41-21-65(6) and 41-21-79, may not be charged to the petitioner/affiant but only to the non-indigent respondent or his/her estate.

Based upon our opinion that Section 41-21-61 et seq. is applicable to commitment proceedings to public and private institutions, we further opine that the costs of legal counsel appointed by the court to represent the respondent in such alcohol and/or drug commitment proceedings to a private facility are to be borne by a non-indigent respondent or by his or her estate.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,
LYNN FITCH, ATTORNEY GENERAL

By: /s/ Phil Carter
Phil Carter
Special Assistant Attorney General