Does a Texas county clerk charge a filing fee when you apply to have someone committed for mental illness or drug or alcohol dependency?

Texas AG Opinion JM-1234: Can a County Clerk Charge a Fee to File a Commitment Application?

Plain-English summary

The Harris County Attorney asked what fees a county clerk may collect when someone files an application for emergency detention or court-ordered treatment in a case involving mental illness, chemical dependency, or drug dependency. In plain terms: if a family member or another adult goes to the courthouse to start the process of having a person detained or committed for treatment, does the clerk charge them a filing fee?

The Attorney General's answer was no. Even though the county-clerk fee schedule then in the Local Government Code listed a $40 charge for "mental health services," the opinion concluded the clerk is not to collect that fee from the person who submits the application. The reason is a specific statute, article 5547-14 of the mental health law, which said the county bears the cost of mental health proceedings. The opinion read the clerk's work on a commitment case as part of those proceedings, so the cost falls on the county, not on the applicant. The county is not simply out the money, though: it may seek reimbursement from the patient or from a person legally liable for the patient's support in a state facility.

The opinion then applied the same result to chemical-dependency cases. After the legislature folded the old alcohol and drug commitment statutes into the Health and Safety Code in 1989 and amended article 5561c-2 to cover all "chemically dependent" persons, the cost rules for those cases were tied back to the rules for court-ordered mental health services. So the same answer follows: the clerk does not charge the applicant, the county bears the cost, and the county may seek reimbursement.

Finally, the county attorney asked whether the commissioners court could set a fee for sheriffs or constables to charge patients for transportation to and from commitment hearings. The answer was again no. Because "proceedings" in article 5547-14 is read broadly, transportation is part of the proceedings the county pays for, so officers cannot bill patients directly. The county bears the cost and may seek reimbursement.

Currency note

This opinion was issued in 1990 and interprets statutes (the article 5547 mental health series, article 5561c-2, and the Local Government Code fee schedule) that have since been recodified, most of the mental-health and chemical-dependency provisions into the Health and Safety Code. Fee amounts and section numbers have changed. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

County clerks: The opinion told clerks not to collect a fee from the person filing an application for emergency detention or court-ordered treatment, in either mental-health or chemical-dependency cases, despite the $40 "mental health services" line in the fee schedule.

Counties: The county bears the cost of the clerk's services in commitment proceedings under article 5547-14, and also the cost of transporting patients to hearings, but it may seek reimbursement from the patient or a person liable for the patient's support in a state facility.

People who file commitment applications: A family member or other adult who applies to have a person detained or committed for treatment is not charged a filing fee by the clerk at the courthouse door. That mattered because applying does not make the person a party to a lawsuit in the ordinary sense.

Sheriffs and constables: They cannot collect transportation fees directly from patients for trips to and from commitment hearings; that cost is the county's.

Common questions

Did the person filing the commitment application have to pay the clerk's $40 fee?
No. The opinion concluded that the specific statute making the county bear the cost of mental health proceedings (article 5547-14) controlled over the general fee-schedule language, so the clerk could not charge the applicant.

If the county pays, does anyone ever pay it back?
Yes, potentially. Article 5547-14 let the county seek reimbursement from the patient or from a person legally liable for the patient's support in a state mental health facility. The same reimbursement approach applied to chemical-dependency cases.

Was the answer different for drug or alcohol cases?
No. After the 1989 recodification and the amendments in Senate Bill 57, article 5561c-2 covered all chemically dependent persons and tied the cost rules to those for court-ordered mental health services. So the clerk again could not charge the applicant, and the county could seek reimbursement.

Could the sheriff charge a patient for the ride to the hearing?
No. Because "proceedings" in article 5547-14 was interpreted broadly, transportation was part of the proceedings the county pays for, so sheriffs and constables could not bill patients directly.

Background and statutory framework

Two different filings were in play. An application for emergency detention of a mentally ill person went to a magistrate, not the county clerk (article 5547-28), while an application for court-ordered mental health services was filed with the county clerk (article 5547-32). Section 118.052 of the Local Government Code set a $40 fee for "mental health services," but section 118.055(c) tied that fee to the services described in articles 5547-13, 5547-14, and 5547-15, and it was not clear from whom the $40 was owed.

The opinion worked through the tangled history of that fee language. The substance of section 118.055(c) was first adopted in 1967, and it purported to repeal parts of articles 5547-13 through 5547-15 to the extent of any conflict. Attorney General Opinion M-135 (1967) found the repealer ineffective on constitutional caption grounds, but Attorney General Opinion H-1097 (1977) concluded that a 1977 amendment validated the repealer language. H-1097 held that the $40 covered all of the clerk's services in a mental-health commitment (filing the petition, issuing notices, administering oaths, and the rest), but it did not decide who owed the fee. Filling that gap, this opinion held that article 5547-14, which makes the county bear the cost of mental health proceedings, means the county (not the applicant) pays for the clerk's services, with reimbursement available from the patient or a responsible person.

On the "who is the party" point, the opinion noted that a person who merely applies for mental health services does not thereby become a party to a lawsuit, citing Texas Farm Bureau Cotton Ass'n v. Lennox, 297 S.W. 743 (Tex. 1927), and Doe v. Roe, 600 S.W.2d 378 (Tex. Civ. App.—Eastland 1980, writ ref'd n.r.e.), on the meaning of "party." It did not have to resolve that question, though, because the specific cost provision in article 5547-14 controlled.

For chemical dependency, the opinion untangled the 1989 recodification. The 71st Legislature repealed the old alcohol (article 5561c-2) and drug (article 5561c-1) commitment statutes when it adopted the Health and Safety Code, recodifying them into chapters 462 and 463, then in a special session amended article 5561c-2 (Senate Bill 57) to cover all chemically dependent persons. Under Government Code section 311.031(c), a repeal of a statute by a code does not affect an amendment made by the same legislature, so the S.B. 57 amendments took effect as part of the Health and Safety Code. S.B. 57 tied the cost of chemical-dependency commitments to the rules for court-ordered mental health, probation, or parole services, which produced the same result: no fee charged to the applicant, cost borne by the county, reimbursement available.

Citations

Statutes:

• Tex. Rev. Civ. Stat. art. 5547-14 (county bears cost of mental health proceedings; reimbursement from patient or responsible person)
• Tex. Rev. Civ. Stat. art. 5547-28 (application for emergency detention presented to a magistrate)
• Tex. Rev. Civ. Stat. art. 5547-32 (application for court-ordered mental health services filed with the county clerk)
• Tex. Rev. Civ. Stat. art. 5561c-2 (commitment of chemically dependent persons; costs)
• Tex. Local Gov't Code § 118.052 ($40 fee for mental health services in the county-clerk fee schedule)
• Tex. Local Gov't Code § 118.055 (services covered by the mental health services fee)
• Tex. Gov't Code § 311.031(c) (repeal by a code does not affect an amendment by the same legislature)

Cases:

• Texas Farm Bureau Cotton Ass'n v. Lennox, 297 S.W. 743 (Tex. 1927) (meaning of "party")
• Doe v. Roe, 600 S.W.2d 378 (Tex. Civ. App.—Eastland 1980, writ ref'd n.r.e.) (meaning of "party")

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1234
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1234.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

October 16, 1990

Honorable Mike Driscoll
Harris County Attorney
1001 Preston, Suite 634
Houston, Texas 77002

Opinion No. JM-1234

Re: Authority of a county clerk to collect a fee upon filing of an application for emergency detention or court-ordered services in cases involving mental competency or chemical dependency, and related questions (RQ-2004)

Dear Mr. Driscoll:

You ask the following question:

What fee(s), if any, is the County Clerk authorized to collect upon the submission or filing of an application for emergency detention or court-ordered services in cases involving mental competency, chemical dependency or drug dependency?

We will first address your question in regard to emergency detention of mentally ill persons. Any adult person may apply for emergency detention of another person upon a showing that the applicant has reason to believe that the subject of the application is mentally ill and that he or she poses an imminent risk of serious harm to himself or others. V.T.C.S. art. 5547-28. Such an application is to be presented to a magistrate, not to the county clerk. Id. art. 5547-28, § (c). An application for court-ordered mental health services is to be filed with the appropriate county clerk. Id. art. 5547-32, § (a).

Section 118.052 of the Local Government Code sets out a fee schedule for clerks of county courts. The fee to be charged for "mental health services" is $40. It is not clear, however, who is responsible for the $40 fee. To answer that question, it is necessary to examine the language and history of section 118.055(c) of the Local Government Code.

Section 118.055(c) of the Local Government Code provides that the $40 fee for mental health services is for the services listed in articles 5547-13, 5547-14, and 5547-15, V.T.C.S. The substance of section 118.055(c) was first adopted in 1967 as part of an act setting out fees to be charged by county clerks and clerks of county courts.[1] Acts 1967, 60th Leg., ch. 600, at 1785. That act stated that articles 5547-13, 5547-14, and 5547-15 were repealed to the extent that they were in conflict with the new act. A 1967 opinion of this office concluded that the repealer was ineffective because the caption to the bill did not meet constitutional requirements. Attorney General Opinion M-135 (1967). In 1977 this office concluded that whatever the case may have been in 1967, a 1977 amendment of the fee statute validated the language stating that articles 5547-13 through 5547-15 were repealed to the extent of conflict with the fee statute. Attorney General Opinion H-1097 (1977).

The repealing language in the fee statute is troublesome since neither the county clerk nor the fees of the county clerk are specifically mentioned in articles 5547-13, 5547-14, or 5547-15. Article 5547-13 provided that the county or district attorney was to represent the state in hearings on court-ordered mental health services. Article 5547-14 stated that counties were to pay for certain mental health proceedings and that those counties were entitled to reimbursement. Article 5547-15 provided that appointed attorneys and physicians were entitled to reasonable compensation, which was to be taxed as costs in the case.

In any case, Attorney General Opinion H-1097 considered the combined effect of the portion of the fee statute regarding mental health services and articles 5547-13, 5547-14, and 5547-15, and concluded:

[The fee provision] sets the clerk's fee in "each original cause or action in a Probate Court . . . due and payable and to be paid by the party . . . initiating said cause . . . ." In an action involving a mentally ill person, the clerk's total fee for services in connection with proceeding under articles 5547-13 through 5547-15 is set at $40.00. . . . [The fee statute] thus limits the amount that may be charged for filing a petition, issuing notices, administering oaths, and performing all other clerical duties in connection with the kinds of commitment listed in article 5547-14. If the county judge allows compensation to an appointed attorney or physician under article 5547-15, it is taxed as costs in the case, and the clerk has certain duties with respect to collecting it. . . . [The fee statute] does not attempt to repeal the provisions of the Mental Health Code regarding payment of attorneys' fees, physicians' fees, and transportation costs. Since these fees are not paid to the clerk, they are unaffected by [the fee statute].

See also Attorney General Opinion M-135 (1967). In other words, Attorney General Opinion H-1097 determined that any services of the county clerk in regard to mental health proceedings, including the filing of an application, were to be considered services listed in articles 5547-13 through 5547-15 and that the total fee for any such services was to be $40.

It is significant that Attorney General Opinion H-1097 did not conclude that the fee statute had repealed any specific language of articles 5547-13 through 5547-15. If Attorney General Opinion H-1097 had concluded that specific portions of articles 5547-13 through 5547-15 had been repealed, we would have to consider whether any such portions had been revived, since articles 5547-13 through 5547-15 were revised and reenacted in 1983 as part of a substantive revision of the mental health statutes. Acts 1983, 68th Leg., ch. 47, § 1, at 211 (eff. Sept. 1, 1983). Fortunately, we have been spared that effort. Because nothing in the 1983 revisions calls the conclusion of Attorney General Opinion H-1097 into question, those conclusions remain valid.

Although Attorney General Opinion H-1097 determined what services the $40 fee covered, it did not determine from whom the $40 fee was to be collected. Although the history and language of the relevant statutes create some confusion on this issue, we conclude that the county clerk is not to collect a fee from the person who submits an application for emergency detention or court-ordered treatment, but that the county may seek reimbursement from the patient for the services of the county clerk in such matters.

Because no services of the county clerk were actually mentioned in articles 5547-13 through 5547-15, Attorney General Opinion H-1097 had to be saying that the $40 covered services of the county clerk in connection with proceedings mentioned in those provisions. It happens that article 5547-14 provides that the county is to bear the cost of mental health proceedings. Because Attorney General Opinion H-1097 viewed the services of the county clerk as part of the mental health proceedings for purposes of the fee statute, it is consistent to interpret the provision that the county bear the cost of such proceedings to mean that the county is to bear the cost of the clerk's services. We conclude, therefore, that under article 5547-14 the county is to bear the costs of the services of the county clerk in regard to mental health proceedings. See V.T.C.S. art. 5547-14, § (b) (county may seek reimbursement from patient or person liable for patient).

It has been suggested, however, that the person who submits the application is to pay the $40 fee because section 118.055 states that the various court fees to be collected by the county clerk, including the $40 fee for mental health services, are to be paid by the "party" initiating the action. See also Acts 1967, 60th Leg., ch. 680, at 1785; Acts 1977, 65th Leg., ch. 291, at 763; Acts 1981, 67th Leg., ch. 574, at 2341; Acts 1983, 68th Leg., ch. 101, at 500; Acts 1985, 69th Leg., ch. 180, at 746 (previous versions of fee statute). This statement is problematic in regard to an application for mental health services because the person who makes the application does not thereby become a party to a lawsuit. See, e.g., V.T.C.S. arts. 5547-48(3), 5547-13 (county or district attorney shall represent the state in hearings on court-ordered mental health treatment); see also Texas Farm Bureau Cotton Ass'n v. Lennox, 297 S.W. 743 (Tex. 1927); Doe v. Roe, 600 S.W.2d 378 (Tex. Civ. App.—Eastland 1980, writ ref'd n.r.e.) (both cases discussing meaning of term "party"). We need not determine whether the person submitting an application for mental health services is "the party initiating the action," however, because we believe that the specific language in article 5547-14 controls. In other words, because the legislature has specifically indicated that counties, at least initially, are to bear the cost of commitment proceedings, we do not think article 118.055 authorizes the county clerk to collect a fee from the person who files an application for court-ordered treatment. The county is responsible for the cost of services of the clerk, but it may seek reimbursement from the patient or from a person liable for the patient's support in a state mental health facility. V.T.C.S. art. 5547-14, § (b).

Before we address your question in regard to persons who are dependent on drugs or alcohol, it is necessary to clarify which statutory provisions apply. Before 1989, commitment procedures for alcoholics were set out in article 5561c-2, V.T.C.S. Commitment procedures for drug-dependent persons were set out in article 5561c-1, V.T.C.S. When the legislature adopted the Health and Safety Code in 1989, it repealed those statutes. Repealed by Acts 1989, 71st Leg., ch. 678, § 13(1) (eff. Sept. 1, 1989); Acts 1989, 71st Leg., 1st C.S., ch. 23, § 16(5) (eff. Nov. 1, 1989). The provisions regarding commitment of alcoholics were recodified in chapter 462 of the Health and Safety Code; those regarding commitment of drug-dependent persons were moved to chapter 463. Then, in its first called session, the 71st Legislature, which had repealed articles 5561c-1 and 5561c-2, repealed article 5561c-1 again and amended article 5561c-2 to cover commitment proceedings for all "chemically dependent" persons. Acts 1989, 71st Leg., 1st C.S., ch. 23, § 13, at 54 (hereinafter S.B. 57).

The repeal of a statute by a code does not affect an amendment of the statute by the same legislature which enacted the code. Gov't Code § 311.031(c). The amendment is preserved and given effect as part of the code provision. Id. Therefore, the amendments made to article 5561c-2 by S.B. 57 are to be given effect as part of the Health and Safety Code. In other words, the provisions applicable to persons dependent on alcohol are now the same as the provisions applicable to persons dependent on other drugs. The applicable provisions are those found in S.B. 57. To minimize confusion, we will also cite the section designations set out in Title 2 of the Texas Alcohol and Drug Abuse Services Act, as amended by section 13 of S.B. 57, in discussing the provisions applicable to emergency detention of and court-ordered treatment for chemically dependent persons.

An application for emergency detention of a chemically dependent person is made to a judge or magistrate, not the county clerk. S.B. 57, Acts 1989, 71st Leg., 1st C.S., ch. 23, § 13, at 56 (codified at V.T.C.S. art. 5561c-2, § 2.02(d)). An application for court-ordered treatment for a chemically dependent person is made to the appropriate county clerk. Id. at 58 (codified at V.T.C.S. art. 5561c-2, § 3.02(a)). The following provision applies to the costs of commitment:

The laws relating to payment of costs of commitment and support, maintenance, and treatment and to securing reimbursement for those actual costs that are applicable to court-ordered mental health, probation, or parole services apply to each item of expense incurred by the state or the county in connection with the commitment, care, custody, treatment, and rehabilitation of a person receiving care and treatment under this Act.

Id. at 68 (codified at V.T.C.S. art. 5561c-2, § 5.11(a)). In other words, that provision means that the county clerk is to look to the laws governing court-ordered mental health services, probation services, or parole services to determine the fees to be charged upon submission of an application for court-ordered treatment of a chemically dependent person. Because the procedures in regard to an application for court-ordered mental health treatment closely parallel the procedures in regard to applications for court-ordered treatment of a chemically dependent person, we conclude that the county clerk is to look to the laws governing court-ordered mental health treatment to determine whether the county clerk is to collect a fee from the person who submits an application for court-ordered treatment of a chemically dependent person. But see id. § 5.11(c) (codified at V.T.C.S. art. 5561c-2) (county may not pay cost for person committed to private hospital unless authorized by commissioners court). See generally Code Crim. Proc. arts. 42.12, § 11(a)(16) (condition of probation may include drug treatment), 42.18, § 8(g) (any condition authorized for probation also authorized for parole). Consequently, we conclude that the county clerk is not to collect a fee from the applicant, but that the county may seek reimbursement from the patient or a person liable for the patient's support in a state facility.

You also ask the following question:

May the Commissioners Court set a fee to be collected by the sheriff or constables for the transport of mental health patients to and from private hospital facilities to the location where the commitment hearings are held?

Because the term "proceedings" in article 5547-14 has been interpreted broadly, we conclude that sheriffs and constables may not collect fees directly from patients for transportation to and from commitment proceedings. The county is to bear those costs. V.T.C.S. art. 5547-14. The county may seek reimbursement. Id.

SUMMARY

The Harris County Clerk is not to collect a fee upon submission of an application for emergency detention or court-ordered treatment of a mentally ill person. The county is responsible for costs of such services, but it may seek reimbursement from a person liable for the patient's support in a state mental health facility. Similarly, the Harris County Clerk is not to collect a fee upon submission of an application for emergency detention or court-ordered treatment of a chemically dependent person, but the county may seek reimbursement. Sheriffs and constables may not collect fees directly from patients for transportation to and from hearings in regard to court-ordered mental health treatment.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

[1] The constitution provides that the county clerk is the clerk for the constitutional county court. Tex. Const. art. V, § 20. Section 25.0010(b) of the Government Code states that the county clerk shall serve as clerk of each statutory county court. See also Gov't Code §§ 25.1032(j) (Harris County Clerk shall keep separate docket for each county civil court at law), 25.1033(l) (district clerk serves as clerk for Harris County criminal courts at law), 25.1034 (Harris County Clerk shall keep separate docket for Harris County statutory probate courts). Consequently, we will use the term "county clerk" in this opinion to describe the Harris County Clerk in all of her roles.