,.
NE GENE
EXAS
June 30, 1953
Hon. James A. Bethea, M.D. Opinion NO. s-61
Executive Director
Board for Texas ,StateHospi- Re: Legality of a District
tals and Specia.1Schools Att,orneyreceiving a
Austin, Texas 10% cornmIssionon col-
lecti,onson anyaccount
due for board and treat-
ment when payments are
to be made in monthly
installments under sub-
Dear Dr. Bethea: mitted contracts.
Your opinion request of May 27th concerns the
legality of a District Attorney receiving a 10% commis-
sion on cpllections on an account due for board and
treatment when payments are to be made in monthly install-
ments~under the submitted contract.
The District Attorney of Hill County filed suit
under Article 31,96a,Vernon's Civil Statutes, on behalf
of the State,,acting through the Board of Texas State
Hospitals and Special Schools against the guardian of
a State hospital patient for $6,540.00 due the State for
board and treatment of the patient. In consideration of
the State dismissing its pending suit against the guardian,
the guardian agreed that the above amo~untwas due the
State, that $l,OOO.OO should be paid immediately on the
account. and that $rO.OO would be paid each month to ap-
ply on the balance of the above amount due the State.
Section 5 of Artiale 3196a, V.C.S., reads as
follows:
"Upon the written request of the State
Board of Control the.County or Dis,trictAt-
torney, or in case of the refusal or inability
of both to act, the Attorn,eyGeneral, shall
repre~aentthe State in filing a claim in
Probate Court ora petition in a Court of
competent jurisdiction, wherein the guardian
of such patient and/or other person legally
Hon. James A. Bethea, page 2 (s-61)
liable for his supp,ort,may be cited to
appear then and there to show cause why the
State should not have Judgment against him
or them for the amount due it for the sup-
port, maintenance, and treatment of such
patient; and, upon sufficient showing,
judgment may be entered~against such guardian
or other persons for the amount found to be
due the State, which j,udgmentmay be enforced
as in other cases. A verified account, sworn
to by the superintendent of the respective
hospitals or psychopathic hospitals wherein
such patient is being treated,~or has been
treated, as to the amount due shall be suf-
ficient evidence to authorize the Court to
render judgment therein. The County or Dis-
trict Attorney representing the Statueshall
be entitled to-a commission of ten (10) per
cent, of the amount collected. All moneys so
collected, les,s.s'uch
commis,slon,,~
shall be,
by the said attorney, paid to the State Board
of Control, which shall receive and receipt
for the same and shall use the same for the
maintenance and improvement of said institu-
tion or institutions in which said patient
shall have been confined,"
This article clearly authorizes the District At-
torney to represent the State in filing a claim, and pro-
vides that such District Attorney shall be entitled to a
commission of lO$ of the amount collected.
There being no q,ue,stion
raised concerning the
right of the District Attorney under the above mentioned
statute to receive a 10% commission on the $l,OOO.OO when
collected, we come to your inquiry whether he is entitled
to such commission on the $10.00 to be paid monthly on
the balance of the amount due the State under the con-
tract.
It is clear, we think, that a District Attorney
receives commissions only on the amount actually col-
lected. Therefore, it is our opinion that a District At-
torney would be entitled to a 10% of the $10.00, or so
much thereof as may be actually collected, each month,
when it has been paid in money to some officer authorized
by law to collect it.
Hon. James A. Bethea, page 3 (s-61)
Section 5 of Article 3912e,,V.C.S., provides
that it is the duty of officers to charge ,and collect
such commissions, and further states that "as and when
such fees are collected they shall be deposited in the
offIcerat salary fund. . .' Alao see Tex. Const. Art.
XVI, Sec. 61.
'The District Attorney of Hill County
will be entitled to receive 10% oommiasion
on the $10.00 to be paid monthly on a
State hospital board and treatment account
due the State, as provided in a contract
with the guardian of a patient, when the
$10.00 is actually collected, such commis-,
sion to be depos~itedin the County Officers'
Salary Fund of Hill County.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General
Rudy G. Rice
State Affairs Divis$on
C. K. Richards
Reviewer William M. King
Assistant
Burns11 Waldrep
Executive Assistant
John Ben Shepperd
Attorney General