Does Mississippi's $400 cost cap in commitment proceedings cover hospital and physician fees, or just court costs?

Plain-English summary

Harrison County's chancery clerk asked the AG to clarify how the $400 cost cap in § 41-21-79 works for civil commitment proceedings. Three questions: what does the cap include, does it apply to non-indigent respondents, and does the county still owe a county-owned hospital for prehearing care.

The AG worked through them.

What the cap includes. § 41-21-79's text lists costs incidental to court proceedings: "court costs, prehearing hospitalization costs, cost of transportation, reasonable physician's, psychologist's, nurse practitioner's or physician assistant's fees set by the court, and reasonable attorney's fees set by the court." The list is non-exhaustive ("including, but not limited to"). All these costs together are capped at $400. § 41-21-65(6) separately handles affiant fees and assessments; those cannot be charged under § 41-21-79.

Indigent vs. non-indigent. The cap is $400 in either case. If the respondent is indigent, the county of residence pays. If the respondent is not indigent, the costs are taxed against the respondent or their estate. The 2006 Blakley and 2001 Williams opinions are cited for the same point. The state may pay if state funds are available specifically for that purpose.

County hospital ownership. If the county is part-owner of the hospital that provided the prehearing care, the county still owes the hospital. The 1989 Aldy opinion treats county hospitals as separate governing authorities from the county itself. Parish v. Frazier, 195 F.3d 761 (5th Cir. 1999) confirms a county hospital is a political subdivision of the state. Under Article 4 § 100 of the Mississippi Constitution and the AG's prior opinions (Thomas 1999, McDonald 1996), neither the state nor any of its political subdivisions may forgive a debt. So the county cannot just write off what it owes its own hospital.

The opinion holds the total that may be charged for all costs incidental to the court proceedings cannot exceed $400, whether the respondent is indigent (county of residence pays) or not (taxed to the respondent or estate).

What this means for you

If you serve as a chancery clerk handling commitment intake

Under the opinion, the $400 cap in § 41-21-79 covers all costs incidental to the court proceedings, including court costs, prehearing hospitalization, transportation, physician/psychologist/nurse-practitioner/PA fees set by the court, and attorney's fees set by the court. Because the statutory list is "not limited to" those items, the opinion says it is for the county to determine whether any other cost is also incidental to the proceedings. The cap may not be charged to the affiant or included in the § 41-21-65(6) fees and assessments.

If you operate a Mississippi community mental health center or hospital providing pre-evaluation services

The opinion holds the total chargeable for all costs incidental to the proceedings is $400. Under the statute, those costs are paid by the county of residence when the respondent is indigent (unless state funds are made available for that purpose) or taxed against the respondent or estate when the respondent is not indigent. The opinion cites the Williams opinion for the point that a hospital may collect from the individual unless indigent, in which case it bills the county.

If you serve on a Mississippi county board of supervisors

Under the opinion, for an indigent respondent the county of residence pays the costs incidental to the proceedings, up to $400. If the county is part-owner of the hospital, the opinion holds the county is still responsible, because Article 4 § 100 prohibits the forgiveness or waiver of a debt by the state or its political subdivisions, even between county entities (citing McDonald).

If you are a chancellor presiding over commitment proceedings

Under § 41-21-79, the physician/psychologist/nurse-practitioner/PA fees and the attorney's fees are "set by the court," and the opinion holds the total of all costs incidental to the proceedings cannot exceed $400.

If you represent a respondent in commitment

Under the opinion, for a non-indigent respondent the costs incidental to the proceedings (capped at $400) are taxed against the respondent or the estate; for an indigent respondent the county of residence pays. The opinion addresses only these "costs incidental to the court proceedings," not other costs of treatment.

Common questions

Q: What does the $400 cap apply to?
A: The opinion reads § 41-21-79 to cap "the total amount that may be charged for all of the costs incidental to the court proceedings" at $400. That is the figure in the statute the opinion quotes.

Q: What if the actual cost is way more than $400?
A: The opinion holds the total chargeable for costs incidental to the proceedings cannot exceed $400. The statute provides for payment by the state if funds for those purposes are made available; otherwise the cap is the cap. The opinion does not authorize charging above it.

Q: Does this apply to all involuntary commitments?
A: § 41-21-79 sits in Mississippi's civil commitment chapter (Title 41, Chapter 21). It applies to chancery-court civil commitment proceedings. Other commitment routes (criminal-justice-related, juvenile, etc.) operate under different statutes.

Q: Can the county pay the hospital from a different fund to avoid the cap?
A: The cap is on charges to the proceeding, not on what the county can pay generally. A county can support a county-owned hospital in other ways under separate authority. The McAdams opinion is about not being able to waive the debt the county already owes.

Q: What about state funds?
A: § 41-21-79 says "unless funds for those purposes are made available by the state." If the state has appropriated funds specifically for these costs, those can supplement the indigent county-of-residence obligation.

Q: How does the indigency determination work?
A: The opinion does not lay out a procedure for determining indigency. It addresses only who bears the capped costs once the respondent's indigency status is known.

Background and statutory framework

Mississippi's civil commitment process is in Title 41, Chapter 21. It places primary responsibility for proceeding costs on the respondent (if non-indigent) or the county of residence (if indigent), with a statutory cap to prevent open-ended liability. The cap was set at $400 in the current version of the statute.

Mississippi's prohibition on debt forgiveness sits in Article 4 § 100 of the state constitution: "No obligation or liability of any person, association, or corporation held or owned by this state, or levee board, or any county, city, or town thereof, shall ever be remitted, released or postponed, or in any way diminished by the legislature, nor shall such liability or obligation be extinguished except by payment thereof into the proper treasury." The opinion applies this to inter-entity county debts (county to county-owned hospital), citing the McDonald opinion (debt owed by a county nursing home to a county-owned hospital) and the Thomas opinion (neither the state nor its political subdivisions may forgive a debt).

Citations

• Miss. Code Ann. § 41-21-65(6) (affiant fees and assessments)
• Miss. Code Ann. § 41-21-79 ($400 cost cap on commitment proceedings)
• Miss. Const. Art. 4, § 100 (prohibition on debt forgiveness by political subdivisions)
• Parish v. Frazier, 195 F.3d 761 (5th Cir. 1999) (county hospital is a political subdivision)
• MS AG Op., Aldy (Aug. 9, 1989) (county hospital and county are separate governing authorities)
• MS AG Op., Blakley (Aug. 25, 2006) (costs borne by respondent or county of residence)
• MS AG Op., Williams (July 6, 2001) (hospital may collect from individual unless indigent)
• MS AG Op., Thomas (Nov. 19, 1999) (state and political subdivisions cannot forgive debt)
• MS AG Op., McDonald (Nov. 8, 1996) (Article 4 § 100 prohibits inter-entity debt forgiveness)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2022/11/J.McAdams-November-7-2022-Statutory-Cap-on-Costs-Incidental-to-Court-Proceedings-in-Commitment-Proceedings.pdf

Original opinion text

November 7, 2022
John McAdams
Harrison County Chancery Clerk
Post Office Drawer CC
Gulfport, Mississippi 39502
Re:

Statutory Cap on Costs Incidental to Court Proceedings in Commitment
Proceedings

Dear Mr. McAdams:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, your office receives the sworn statements requesting psychiatric
treatment for persons thought to be suffering from mental illness, and your office subsequently
arranges the requisite prescreening evaluations with a physician, psychologist, or nurse
practitioner. Often, the costs of custody and pre-evaluation screening exceed the $400.00 cap
placed on "costs incidental to court proceedings" as set forth in Mississippi Code Annotated
Section 41-21-79. You present the following questions for our consideration.
Questions Presented

1. Does the $400.00 cap in Section 41-21-79 of the Mississippi Code strictly refer to the court
   costs associated with the court proceedings necessary to initiate the process, or is the
   $400.00 inclusive of the prehearing hospitalization costs, cost of transportation, reasonable
   physician's, psychologist's, nurse practitioner's or physician assistant's fees, and
   reasonable attorney fees?
2. Does the $400.00 statutory cap apply to both non-indigent and indigent respondents?
3. Is the respondent's county of residence responsible for paying the prehearing
   hospitalization costs, cost of transportation, reasonable physician's, psychologist's, nurse
   practitioner's, or physician assistant's fees when the county is a partial owner of the
   hospital?

Brief Response
1.

The statutory cap of $400.00 on costs incidental to court proceedings in Section 41-21-79
includes, but is not limited to, the following: court costs, prehearing hospitalization costs,
cost of transportation, reasonable physician's, psychologist's, nurse practitioner's or
physician assistant's fees, and reasonable attorney's fees.

2.

The statutory cap applies to both indigent and non-indigent respondents. The total that may
be charged for all the costs incidental to the court proceedings is $400.00, and it either will
be paid by the respondent, or by the respondent's county of residence if the respondent is
indigent.

3.

If the county of the respondent's residence is responsible for the prehearing hospitalization
costs, the county is still responsible despite being a partial owner of the hospital. Otherwise,
it would amount to an unconstitutional forgiveness or waiver of debt.
Applicable Law and Discussion

Section 41-21-79 reads as follows:
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's 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).
You state that clarity is needed regarding the meaning of "costs incidental to the court proceedings"
in Section 41-21-79. The plain language of the statute lists the main costs incidental to court
proceedings, including, but not limited to: "court costs, prehearing hospitalization costs, cost of
transportation, reasonable physician's, psychologist's, nurse practitioner's or physician assistant's
fees set by the court, and reasonable attorney's fees set by the court. . . ." Id. Because the list is not
an exhaustive one, it is for the county to determine if any costs not included in this list may also
be incidental to court proceedings.
The statute does not limit the application of the $400.00 cap to indigent respondents. Thus, it is
the opinion of this office that the $400.00 cap applies to both indigent and non-indigent
respondents. If the respondent is indigent, then the county of his or her residence pays for the costs
incidental to the court proceedings, up to $400.00. See MS AG Op., Blakley at *2 (Aug. 25, 2006)
(opining that costs incidental to the court proceedings be borne by either the respondent or the

county of his or her residence); MS AG Op., Williams at 1 (July 6, 2001) (stating that a hospital
may collect costs from the individual unless he or she is indigent, then the hospital should bill the
county for the expenses). Section 41-21-79 does make provision for payment of costs for an
indigent respondent by the state if such funds are available for that purpose. If the respondent is
not indigent, then the respondent is responsible for the costs incidental to the court proceedings,
up to the $400.00 cap.
Finally, you ask if the county of respondent's residence is responsible for paying the prehearing
hospitalization costs, reasonable physician's, psychologist's, nurse practitioner's, or physician
assistant's fees when the county is part owner of the hospital. This office has previously opined
that a county hospital and the county "are separate and distinct governing authorities with respect
to community hospital affairs . . . ." MS AG Op., Aldy at 1 (Aug. 9, 1989). Moreover, a
community or county hospital is a political subdivision of the State. Parish v. Frazier, 195 F.3d
761, 764 (5th Cir. 1999). This office has previously opined "that neither the state or [sic] any of its
political subdivisions is authorized to forgive a debt." MS AG Op., Thomas at 2 (Nov. 19, 1999).
Even when the debt is owed by one county entity to another, this office has opined that Article 4,
Section 100 of the Mississippi Constitution of 1890 prohibits the forgiveness or waiver of a debt
by the state or its political subdivisions. MS AG Op., McDonald at 1 (Nov. 8, 1996) (reviewing
debt owed by county nursing home to county-owned hospital). Therefore, the county of
respondent's residence is still responsible for the applicable costs despite being part owner of the
hospital.
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/ Misty Monroe
Misty Monroe
Assistant Attorney General