Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

April 12,200l

The Honorable C.E. “Mike” Thomas, III Opinion No. JC-0364
Howard County Attorney
P.O. Box 2096 Re: Whether a county with a regional mental-
Big Spring, Texas 79721 health hospital may charge a “document
preparation fee” of the county that is responsible
for the costs of a hospital patient’s mental-health
proceeding, and related question (RQ-0306-JC)

Dear Mr. Thomas:

A county that is responsible for paying the costs of a hospital patient’s mental-health
proceeding under section 571 .018(c) of the Health and Safety Code may be ordered to pay all costs
including attorney’s fees; physician-examination fees; compensation of certain court-appointed
personnel; certain transportation expenses; certain costs and salary supplements; and certain
“prosecutor’s fees.” See TEX. HEALTH & SAFETY CODE ANN. 8 571 .018(c) (Vernon Supp.2001);
see also id. 8 571.018(a) (indicating which county is responsible). You ask whether Howard
County, home of Big Spring State Hospital, may charge the responsible county a “document-
preparation fee” if Howard County conducts a mental-health proceeding related to a patient at Big
Spring State Hospital.’ We conclude that the costs the Howard County prosecutor’s office incurs
in preparing necessary documents are included within the phrase “prosecutor’s fees” listed in section
571 .018(c)(6), and the county may not levy a separate charge for preparing the documents. We
assume, as you do, that Howard County is not responsible under subsections 571.018(a) and
571.018(b) of the Health and Safety Code for the costs listed in subsection (c).See TEX. HEALTH
& SAFETY CODE ANN. 0 571.018(a), (b), (c) (Vernon Supp. 2001).

If Howard County may not charge the responsible county a separate fee for preparing
necessary documents, you ask whether the county may “refuse to prepare the necessary documents
and refuse to conduct the hearings for patients at Big Spring State Hospital placed from other
counties.” Request Letter, note 1, at 1. You list four proceedings about which you are concerned:
a probable-cause hearing under section 574.025 of the Health and Safety Code, see TEX.HEALTH &
SAFETY CODE ANN. 0 574.025 (Vernon Supp. 2001); a ninety-day hearing under section 574.034 of
the same code, see id. 8 574.034; a hearing on a motion for extended care under section 574.035 of
the same code, see id. 0 574.035; and a hearing on a motion to authorize the administration of

‘Letter from Honorable C.E. “Mike” Thomas, III, Howard County Attorney, to Honorable John Cornyn, Texas
Attorney General, at 1 (Nov. 6,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable C.E. “Mike” Thomas, III - Page 2 JC-0364

psychoactive medication under section 574.104 of the same code, see id. 8 574.104. The answer for
each of the four types of proceedings you list depends upon the statutes applicable to each type of
hearing.

I. Texas Mental Health Code, title 7, subtitle C of the Health and Safety Code

The Texas Mental Health Code, codified as subtitle C of title 7, Health and Safety Code
(consisting of sections 571 .OOl through 577.019)’ pertains to the care and treatment of mentally ill
individuals. See TEX.HEALTH & SAFETY CODE ANN. chs. 571- 577 (Vernon 1992 & Supp.2001);
Tex. Att’y Gen. Op. No. JC-0287 (2000) at 2. Chapter 573 provides for emergency detention of
persons who are believed to be mentally ill, and chapter 574 provides for other court-ordered mental-
health services.

Under chapter 573, an individual who is believed to be mentally ill may be detained on an
emergency basis in one of two ways: either by a peace officer without a warrant or in accordance
with a court-ordered emergency-detention warrant. See TEX. HEALTH & SAFETY CODE ANN.
$5 573.001, .002, .Ol 1, .012 (Vernon 1992). In either case, a peace officer transports an
apprehended person who is believed to be mentally ill to “the nearest appropriate inpatient mental
health facility” or to “a facility deemed suitable by the county’s mental health authority, if an
appropriate inpatient mental health facility is not available.” Id. 5 573.012(e). The facility to which
the apprehended person is taken temporarily accepts the person for detention. See id. 8 573.021(a).
Following a preliminary examination by a physician (within twenty-four hours of arrival), the
apprehended person is admitted for emergency detention or is released. See id. $0 573.021 (c),
.022(a) (Vernon 1992 & Supp. 2001).

Under chapter 574, a prosecutor or another adult may apply for court-ordered mental-health
care for an individual who may be mentally ill. See id. 5 574.001 (Vernon Supp. 2001); Tex. Att’y
Gen. Op. No. JC-0287 (2000) at 2. The application is filed in the county in which the proposed
patient:

(1) resides;

(2) is found; or

(3) is [already receiving court-ordered mental-health services,
including under an emergency detention].

TEX.HEALTH & SAFETY CODE ANN. 5 574.001(b) (Vernon Supp. 2001); Tex. Att’y Gen. Op. NO.
JC-0287 (2000) at 2. The application may be for extended mental-health services if the proposed
patient “has received court-ordered inpatient mental health services under [the Mental Health Code]
for at least 60 consecutive days during the preceding 12 months.” TEX.HEALTH & SAFETY CODE
ANN. 8 574.002(b) (V emon 1992). Otherwise, the application is for temporary mental-health
services. See id.
The Honorable C.E. “Mike” Thomas, III - Page 3 JC-0364

While an application for court-ordered mental-health services is pending, a motion for a
protective-custody order may be filed in the same court. See id. 9 574.021 (a). If the court issues the
protective-custody order, the court will designate a person to take the proposed patient into
protective custody and transport the person immediately to an appropriate mental-health facility.
See id. 5 574.023(a) (Vernon Supp. 2001); see also id. 9 571.003(2), (22) (defining “commissioner”
and “single portal authority”). A probable-cause hearing must be conducted under section 574.025
of the Health and Safety Code generally within seventy-two hours after the proposed patient is
detained under a protective-custody order. See id. 5 574.025. This hearing addresses whether the
proposed patient presents a substantial risk of serious harm to him- or herself or others. See id.
tj 574.025(b).

After a proposed patient is admitted for court-ordered mental-health services, he or she may
be the subject of several judicial proceedings. Under section 574.034, a “ninety-day hearing”
takes place following a motion for a court order for temporary mental-health services. See id.
8 574.034(g). The patient’s ongoing need for temporary mental-health services must be reevaluated
every ninety days. See id. Under section 574.035, a hearing on a motion for extended care is held
to determine whether the court should authorize a patient’s treatment for up to twelve months. See
id. 5 574.035(a), (h). Finally, a hearing on an application to authorize the administration of
psychoactive medication is held to consider a treating physician’s application under section 574.104.
See id. 8 574.104(a).

Under section 571 .018 of the Health and Safety Code, the county in which the proceedings
originate is responsible for the costs of a hearing or proceeding under the Mental Health Code,
although the responsible county is “entitled” to collect reimbursement from the patient or a person
liable for the patient’s support:

(a) The costs for a hearing or proceeding under this subtitle shall
be paid by:

(1) the county that initiates emergency detention procedures
under Subchapter A or B, Chapter 573; or

(2) if no emergency detention procedures are initiated, the
county that accepts an application for court-ordered mental health
services, issues an order for protective custody, or issues an order for
temporary mental health services.

(b) The county responsible for the costs of a hearing or
proceeding under Subsection (a) shall pay the costs of all subsequent
hearings or proceedings for that person under this subtitle until the
person is discharged from mental health services. The costs shall be
billed by the clerk of the court conducting the hearings.
The Honorable C.E. “Mike” Thomas, III - Page 4 JC-0364

(c) Costs under this section include:

(1) attorney’s fees;

(2) physician examination fees;

(3) compensation for court-appointed personnel listed under
Section 571.017;

(4) expenses of transportation to a mental health facility or to
a federal agency not to exceed $50 if transporting within the same
county and not to exceed the reasonable cost of transportation if
transporting between counties;

(5) costs and salary supplements authorized under Section[]
574.031(i) and (j); and

(6) prosecutor’s fees authorized under Section 574.03 1(k).

(d) A county is entitled to reimbursement for costs actually paid
bY the county from

(1) the patient; or

(2) a person or estate liable for the patient’s support in a
department mental health facility.

Id. § 571 .018(a) - (d) (footnote omitted). Subsections 574.03 l(i), 574.03 l(j), and 574.03 l(k), to
which subsections 571.018(c)(5) and 571.018(c)(6) refer, further provides for costs relating to a
proceeding:

(i) A judge who holds hearings at locations other than the county
courthouse also may receive a reasonable salary supplement in an
amount set by the commissioners court.

(j) Notwithstanding other law, a judge who holds a hearing under
this section may assess for the judge’s services a fee in an amount not
to exceed $50 as a court cost against the county responsible for the
payment of the costs of the hearing under Section 571 .018.
The Honorable C.E. “Mike” Thomas, III - Page 5 JC-0364

(k) Notwithstanding other law, a judge who holds a hearing under
this section may assess for the services of a prosecuting attorney a fee
in an amount not to exceed $50 as a court cost against the county
responsible for the payment of the costs of the hearing under Section
571.018.

Id. 9 574.031(i), (j), (k).

II. Background facts

The county you represent, Howard County, is the home of Big Spring State Hospital. See
Request Letter, supra note 1, at 1. Big Spring State Hospital’s “catchment area,” you inform us,
includes seventy-eight counties. Id. You indicate that, as the home of Big Spring State Hospital,
Howard County bears a large, costly burden:

Most counties perform emergency detentions on patients that need
mental health care and subsequently transfer the patients to Big
Spring State Hospital. If the patients need further care, Howard
County has been conducting the subsequent proceedings. Howard
County must do thousands of hearings for these other counties.

Id. You then list subsequent hearings and the necessary documents that must be prepared:

0
A probable-cause hearing requires preparing three documents.

A ninety-day hearing entails preparing nine documents.

A hearing to extend mental-health’ treatment entails preparing eleven
documents.

. A psychoactive-medication hearing requires preparing four documents.

See id. at 1-2; cf: TEX. HEALTH& SAFETYCODE ANN. $5 573.021(b), 574.003, .025 (Vernon 1992
& Supp. 2001) (detailing patient’s right to be released twenty-four hours after emergency detention
unless court orders further detention; right to judicial probable-cause hearing within seventy-two
hours after petition for court-ordered treatment is filed; right to have attorney appointed when
application for court-ordered services is filed); 25 TEX. ADMIN. CODE 5 404.158(2)(A), (D), (E)
(2000) (Dep’t ofMental Health & Mental Retardation, Protection of Clients and StafQ (same). Since
approximately 1989, Howard County has, by order of its commissioners court and with the
agreement of “most of the counties in the catchment area,” charged a separate fee for document
preparation, which the responsible county pays in addition to all of the statutory fees. Request
Letter, supra note 1, at 2. Currently, Howard County charges $75 to prepare documents necessary
for a probable-cause hearing; $150 for documents necessary for a ninety-day hearing; $200 for
The Honorable C.E. “Mike” Thomas, III - Page 6 JC-0364

documents necessary for a motion to extend care; and $300 for documents necessary for a jury-trial
commitment. Id. at 3. Two counties in the catchment area, Lubbock and Potter, recently have
refused to pay these fees, “contending that the document preparation fee is illegal.” Id. Citing the
additional financial burden placed on Howard County and the county attorney’s office in preparing
the documents and setting the hearings, “Howard County maintains the fees are 1ega1.“* Id.

You do not describe the nature of the costs that Howard County wishes to include within the
document-preparation fee. We assume that the fee covers the services of the prosecutor, legal
assistants, and clerical workers, as well as a portion of equipment costs and materials costs. The
document-preparation fee would, then, reimburse Howard County for these costs.

We limit our response to proceedings involving adult, not juvenile, patients. Proceedings
concerning mentally ill juveniles are initiated in a juvenile court under chapter 55 of the Family
Code. See TEX. FAM. CODE ANN. ch. 55 (Vernon Supp. 2001).

III. Discussion of the issues

A. Whether a county with a regional mental-health hospital may charge the
responsible county a “document-preparation fee” separate from the costs
enumerated in section 571.018(c) of the Health and Safety Code

Under section 57 1 .018, the county that initiates emergency-detention procedures or, if
emergency-detention procedures are not initiated, the county that accepts an application for court-
ordered mental-health services, issues a protective-custody order, or issues an order for temporary
mental-health services must pay the costs of subsequent mental-health-services proceedings. See
Tex. Att’y Gen. Op. No. JC-0287 (2000) at 3. That county continues to be fiscally responsible
until the patient is discharged. See id. Consequently, the responsible county must pay, “for instance,
. . . the costs of a hearing on a petition to administer psychoactive medication” under section
574.106, Health and Safety Code. Id.; see TEX. HEALTH & SAFETY CODE ANN. 5 574.106 (Vernon
Supp. 2001) (“Hearing on Patient’s Capacity and Order Authorizing Psychoactive Medication”).
Because Howard County is not the responsible county, it is not the county where emergency-
detention proceedings were initiated or, if there were no emergency-detention proceedings, it did not
accept an application for court-ordered mental-health services, did not issue a protective-custody
order, or did not order temporary mental-health services.

Nothing in the statute expressly authorizes Howard County, as the home of a regional
mental-health-services facility, to charge the responsible county a document-preparation fee. A

?Nevertheless, Senator Duncan, who represents Howard County, has introduced a bill that would, if passed,
add a new subsection (k) to section 57 1 .018 to expressly permit collecting a document-preparation fee: “If a county
in which a state mental hospital is located incurs costs in the preparation of documents related to mental health
proceedings for a patient or proposed patient in connection with treatment at the state mental hospital, the county may
charge the county of residence of the patient or proposed patient for those costs.” Tex. S.B. 581,77thLeg.,R.S. (2001).
The Honorable C.E. “Mike” Thomas, III - Page 7 JC-0364

county may charge a fee only if it is specifically authorized to do so by statute. See &nacho v.
Samaniego, 83 1 S.W.2d 804, 811-15 (Tex. 1992) (determining that commissioners court is not
authorized to collect preconviction-bail-bond-approval fees because statutes authorize collecting fees
only in civil matters); Nueces County v. Currington, 162 S.W.2d 687,688 (Tex. 1942) (stating that
unless fee is provided for official service and fixed by law, none may be charged); Tex. Att’y Gen.
LO-92-20, at 2. The costs that a responsible party must pay “include, but are not limited to, those
enumerated in section 571 .018(c),” and this office has accordingly concluded that the costs
enumerated in section 571 .018(c) are not exclusive. Tex. Att’y Gen. Op. No. JC-0287 (2000) at 4-5;
seeTEX.HEALTH & SAFETY CODE ANN. 8 571 .018(c) (Vernon Supp. 2001); see also Tex. Att’y Gen.
Op. No. JC-0222 (2000) at 4.

Nevertheless, Howard County may not charge separately for costs intended to be
encompassed within section 571.018(~)(6)‘s phrase, “prosecutor’s fees.” The costs that the
prosecutor’s office incurs in preparing documents necessary to conduct these hearings are
encompassed within the phrase “prosecutor’s fees.” Section 574.03 1(k) plainly limits the fee for a
prosecuting attorney to “an amount not to exceed $50.” TEX. HEALTH & SAFETY CODE ANN.
8 574.031(k) (V emon Supp. 2001). We believe section 571.018(c)(6) and section 574.031(k) are
referring to the same prosecutor’s fee.

The statute is not facially clear as to the components of prosecutor’s fees. Beyond referring
to section 574.03 l(k) of the Health and Safety Code, section 571 .018 does not define or explain the
term. See id. 9 571,018(c)(6). Section 574.03 l(k) indicates only that the prosecutor’s fees are for
the prosecutor’s services, see id. 5 574.03 l(k), but they do not supplement the prosecutor’s salary.
See Tex. Att’y Gen. LO-98-053, at l-2. Rather, they are to be “deposited with the county treasurer
according to section 113.02 1 of the Local Government Code.” Id. But see Debate on Tex. H.B. 591
on the Floor of the Senate, 75th Leg., R.S. (May 27, 1997) (testimony of Senator Ellis on bill’s
second reading) (tape available from Senate Staff Services Office) (indicating that $50 prosecutor’s
fee is court cost to be paid to county’s general fund). Given the statute’s ambiguity, we look for
guidance to relevant legislative history.

The legislature intended sections 571 .018(c), 574.03 1(i), 574.03 1(j), and 574.03 1(k) to limit
the amount the county in which the hospital is located could charge the responsible county for
conducting a hearing. Subsections 571.018(c)(5) and 571.018(c)(6) were adopted in 1997 under
House Bill 591, as were subsections 574.03 l(j) and 574.03 l(k). See Act of May 29, 1997, 75th
Leg., R.S., ch. 1354, $5 1,2,1997 Tex. Gen. Laws 5104,5104-05. Bill supporters believed that the
proposed cost caps would “ensure that each county paid its fair share of hearing costs,” while ending
“recent problem[ s] in some counties that have been overcharging for the services of their prosecutors
in these types of hearings.” HOUSE RESEARCH ORGANIZATION,BILL ANALYSIS, Tex. H.B. 591
(1997). Opponents worried that the limit, originally set at $25, would fail to “cover the actual cost
of a prosecutor’s services” and suggested that the cap be raised (which it was, to $50). Id. Judge
Guy Herman, who testified before the House Committee on Judicial Affairs, stated that a prosecutor
should receive a fee for serving a county other than his or her own, but the prosecutor’s county
should not be able to exploit the responsible county: “what we’re starting to see is, is some counties
The Honorable C.E. “Mike” Thomas, III - Page 8 JC-0364

are starting to charge these fees that are way in excess of what the reasonable cost would be, so [by
limiting the fee to $251 . . . , that is to be the reasonable fee.” Hearings on H.B. 591 Before the
House Comm. on Judicial Aff airs, 75th Leg., R.S. (Feb. 26’1997) (testimony of Judge Guy Herman,
Travis County Probate Judge) (tape available from House Video/Audio Services Office). Senator
Ellis testified to the same effect before the Senate Committee on Jurisprudence: “The bill also
makes the ability to charge a prosecutor’s fee in connection for trying another county’s mental health
cases uniform while setting an upper limit on the fees. This upper limit prevents any county from
trying to take advantage of another.” Hearings on H.B. 591 Before the Senate Comm. on
Jurisprudence, 75th Leg., R.S. (Apr. 21, 1997) (testimony of Senator Ellis) (tape available from
Senate Staff Services Office). Judge Herrnan testified again before the Senate Committee on
Jurisprudence:

[S]ome counties are starting to charge so much in fees that it’s
becoming a money [maker for] their operation rather than doing it as
a service. . . . [Olriginally some of us thought there shouldn’t be a
prosecutor’s fee, but I’m more than willing to have a prosecutor’s fee
but [there] has to be some sense of reasonableness. I heard $125 to
$150 for probable cause hearing-that’s one hearing-there’s another
hearing, a final hearing. I would tend to think the fee would be about
the same-that’s $250 just for the prosecutor’s fee, then you have the
court costs, then you have the constable services, then you have the
special master fee. You have a number of fees in there so one case
costs $1,000. You haven’t even had a jury and there ought to be
some uniformity.

Id. (testimony of Judge Guy Herman, Travis County Probate Judge) (tape available from Senate
Staff Services Office). The legislative history thus suggests that, while the legislature intended a
responsible county fairly to compensate the county that is home to a mental-health-services provider,
it also intended to limit the amount of fees the provider’s county may charge.

We accordingly believe section 57 1.O18(c)(6) should be construed broadly to include within
it all items normally encompassed in the parallel term, “attorney’s fees.” The statutory phrases
“attorney’s fees,” see TEX.HEALTH & SAFETY CODE 9 571.018(c)(l)(Vemon Sup. 20Ol),and
“prosecutor’s fees,” see id. 50 571.018(c)(6), 574.031(k), are analogous: The court appoints an
attorney to represent a proposed patient who does not have an attorney. See id. 8 574.001(a). This
private attorney may collect “attorney’s fees” under section 57 1.018 of the Health and Safety Code.
See id. 5 571 .018(c)(l). The phrase “attorney’s fees” refers to a prosecutor’s counterpart in the
private sector. Thus, the attorney’s fee goes to the private attorney who represents the patient’s
interests, while the prosecutor’s fee goes to the state’s attorney, representing the public’s interest.
Compare id. 5 571 .018(c)(l) (including “attorney’s fees” among billable costs), with id.
8 8 57 1.018(c)(6), 574.03 1(k) (including and providing for “prosecutor’s fee” among billable costs).
The Honorable C.E. “Mike” Thomas, III - Page 9 JC-0364

The phrase “attorney’s fees” commonly encompasses costs related to preparing documents
required in pending litigation. When a court awards a winning party attorney’s fees, the fees
encompass all components of the attorney’s work product: “Clearly, a ‘reasonable attorney’s
fee’ cannot have been meant to compensate only work performed personally by members of the
bar. . . . Thus, the fee must take into account the work not only of attorneys, but also of secretaries,
messengers, librarians, janitors, and others whose labor contributes to the work product for which
an attorney bills her client; and it also must take account of other expenses and profit.” Missouri v.
Jenkins, 491 U.S. 274,285 (1989); E mmeneggerv. BullMoose Tube Co., 33 F. Supp. 2d 1127’1133
(E.D.MO. 1998) (quoting Jenkins, 491 U.S. at 285); In re Vista Foods USA, Inc., 234 B.R. 121,127
(Bank W.D. Okla. 1999); CT ROBERTL. ROSSI,ATTORNEYS’ FEES § 5: 15 (2d ed. 1995). Calculating
a reasonable attorney’s fee in a particular case depends upon prevailing practices in the community.
See Missouri, 491 U.S. at 286-87. Depending upon marketplace custom, attorney’s fees may
include:

0
reasonable photocopying expenses, see Emmenegger, 33 F. Supp. 2d at 1134;

computer-assisted legal research, see id. at 1137; Montgomery v. Aetna
Plywood, Inc., 231 F.3d 399,409 (7th Cir. 2000);

. hourly charges of paralegals and legal assistants, see Emmenegger, 33
F. Supp. 2d at 1138-39; Gill Sav. Ass ‘n v. Int ‘1Supply Co., 759 S.W.2d 697,
702-05 (Tex. App.-Dallas 1988, writ denied). See generally James J.
Watson, Annotation, Attorneys’ Fees: Cost of Services Provided by
Paralegals or the Like as Compensable Element ofAward in State Court, 73
A.L.R. 4TH 938 (1989);

drafting motions, contracts, release authorizations, and outside correspon-
dence, see Bailey v. Dist. of Columbia, 839 F. Supp. 888,891 (D.C. 1993).

Included expenses may not be charged separately. See Gill Sav. Ass ‘n, 759 S.W.2d at 705; 20 AM.
JUR. 2D Costs 8 61(1995) (suggesting that expenses ofparalegals, legal assistants, or computer-aided
research is unrecoverable except as component of award for attorney’s fees).

By analogy, we construe the phrase “prosecutor’s fees” in sections 571.018(c)(6) and
574.03 1(k) to incorporate the prosecutor’s costs associated with preparing all necessary documents.
This construction restricts the amount of money for which a responsible county is liable to the
county in which a mental-health-services facility is located, but permits the hospital’s county some
reimbursement for costs incurred.

By contrast, Wichita County, where another regional mental-health-services provider is
located, has express statutory authority to collect a “reasonable fee” from the responsible county.
TEX. GOV’T CODE ANN. 8 44.343(b) (V emon Supp. 2001). The “reasonable fee” is defined as “an
amount equal to the fee ordered by the Court for any attorney court-appointed to represent the patient
The Honorable C.E. “Mike” Thomas, III - Page 10 JC-0364

or proposed patient at each hearing.” Id. Thus, the Wichita County prosecutor arguably is not
limited by the $50 maximum fee set in section 574.03 1(k) of the Health and Safety Code. See TEX.
HEALTH & SAFETY CODE ANN. 9 574.031(k) (Vernon Supp. 2001); see also Debate on H.B. 591 on
the Floor of the Senate, 75th Leg., R.S. (May 27, 1997) (testimony of Senator Rodney Ellis) (tape
available from Senate Staff Services Office) (stating that Wichita County “is the only one where the
county managed to go in and get permission to charge whatever fee they wanted to charge”). This
statute, applicable only to Wichita County, makes even clearer the fact that other counties, including
Howard County, may request no more than $50 for prosecutor’s fees. See TEX.HEALTH & SAFETY
CODE ANN. $8 571.018(c)(6), 574.031(k) (Vernon Supp. 2001).

Accordingly, Howard County may not charge a responsible county a fee separate from the
prosecutor’s fee authorized by sections 571 .018(c)(6) and 574.031(k) ofthe Health and Safety Code
to prepare documents associated with the various proceedings.

Of course, any request for costs is reviewed and approved by a court. The court in an action
under the Mental Health Code must order the responsible county reasonably to compensate
“attorneys, physicians, language interpreters, sign interpreters, and masters appointed” in the mental-
health proceeding. See id. 5 571.017(a) (Vernon 1992). The court “may assess” a prosecutor’s fee
not to exceed $50 “for the services of a prosecuting attorney.” Id. 5 574.03 1(k) (Vernon Supp.
2001). What is a reasonable cost in a particular case “is a question of fact to be determined by the
trier of fact.” Jim RutherfordInvs., Inc. v. Terramar Beach Cmty. Ass ‘n, 25 S.W.3d 845,853 (Tex.
App.-Houston [ 14th Dist.] 2000, pet. denied); c$ TEX. R. CIV.P. 13 1, 141 (1979) (permitting
successful party to civil action to recover all costs, although “court may, for good cause, . . . adjudge
the costs otherwise”). We will not consider the validity of any particular court order. See Tex. Att’y
Gen. LO-93-74, at 3 (stating that attorney general will not issue opinion “that is in effect an appeal
of a judicial [order]” or that construes court order); see also Tex. Att’y Gen. Op. No. JC-0094 (1999)
at 1’4 (presuming, to avoid construing court order, that no relevant court order is in effect).

With the exception of Wichita County, our conclusion applies to each Texas county in which
a regional mental-health-services hospital is located. See TEX. GOV’T CODE ANN. 5 44.343(b)
(Vernon Supp. 2001). Each other county in which a regional mental-health-services hospital is
located is subject to the $50 limit on allowable prosecutor’s fees. See TEX.HEALTH & SAFETY CODE
ANN. $5 571.018(c)(6), 574.031(k) (Vernon Supp. 2001).

B. Whether Howard County may refuse to hold hearings for patients at Big
Spring State Hospital if it cannot collect a separate document-preparation
fee from the responsible county

You ask second whether, if we conclude that Howard County may not charge the document-
preparation fee, the county may refuse to “do” hearings for a patient for whom another county is
responsible. Request Letter, supra note 1, at 3. We presume you mean us to answer this question
if we determine-as we have-that the costs of document preparation are included within the
The Honorable C.E. “Mike” Thomas, III - Page 11 JC-0364

prosecutor’s fees that Howard County may request under section 571 .018(c)(6) of the Health and
Safety Code.

You list four proceedings about which you are concerned: a probable-cause hearing under
section 574.025; a ninety-day hearing under section 574.034; a hearing on a motion for extended
care under section 574.035; and a hearing on a motion to authorize the administration of
psychoactive medication under section 574.104. The answer to your question depends
upon the statutes applicable to each type of hearing. TEX. HEALTH & SAFETY'CODE ANN.
$9 574.025, .034, .035, .104 (Vernon Supp. 2001).

Howard County, as the county that is home to a mental-health hospital, may not refuse to
conduct a probable-cause hearing under section 574.025 of the Health and Safety Code if an
application for court-ordered mental-health services is pending in the appropriate Howard County
court. A section 574.025 probable-cause hearing must be held in the court in which an application
for court-ordered mental-health services is pending. See id. $5 574.021 (a), .025 (Vernon 1992 &
Supp. 2001). A probable-cause hearing is held to determine whether a proposed patient who is the
subject of a protective-custody order, issued under section 574.022 of the Health and Safety Code,
“presents a substantial risk of serious harm to himself or others to the extent that he cannot be at
liberty pending the hearing on court-ordered mental health services.” Id. 8 574.025(a)( 1) (Vernon
supp. 200 1); see also id. 8 574.022 (Vernon 1992) (“Issuance of Order”). The hearing generally
must be held within seventy-two hours after the proposed patient was detained under a protective-
custody order and may be held before a magistrate or before a master appointed by “the presiding
judge.” See id. $574.025(b), (c) (V emon Supp. 2001). Sections 574.02 1, which dictates the court
in which a motion for a protective-custody order must be filed, and 574.025, regarding the probable-
cause hearing, both are part of chapter 574, subchapter B. Thus, the phrase “the presiding judge” in
section 574.025(c) refers to the judge presiding over the motion for order of protective custody filed
under section 574.021, before whom an application for court-ordered-mental-health services is
pending. See id. 5 574.021(a) (Vernon 1992); Tex. Att’y Gen. Op. No. 0358 (2001). Under section
574.021, a motion for protective-custody order “may be filed only in the court in which an
application for court-ordered mental health services is pending.” TEX.HEALTH& SAFETYCODE
ANN. 5 574.021(a) (Vernon 1992); see also id. § 574.021(b) (p ermitting only county or district
attorney to file motion for protective-custody order, except that court may file on its own motion).
If “the court in which an application for court-ordered mental health services is pending” is a
Howard County court, Howard County may not avoid its duty to conduct the hearing. Id.
5 574.021(a). But if the court is in another county, that county must handle the hearing.

On the other hand, Howard County courts lack jurisdiction to conduct either a ninety-day
hearing under section 574.034 or a hearing on a motion for extended care under section 574.035 with
respect to a patient receiving temporary inpatient mental-health services in Howard County under
order by another county’s court unless the appropriate Howard County court has arranged to hold
the hearing. A ninety-day hearing under section 574.034 and a hearing on a motion for extended
The Honorable C.E. “Mike” Thomas, III - Page 12 JC-0364

care under section 574.035 are both within subchapter C of the Health and Safety Code. Jurisdiction
of all proceedings under subchapter C is dictated by section 574.008:

(a) A proceeding under Subchapter C or E [“Post-Commitment
Proceedings”] must be held in the statutory or constitutional county
court that has the jurisdiction of a probate court in mental illness
matters.

(c) If a patient is receiving temporary inpatient mental health
services in a county other than the county that initiated the court-
ordered inpatient mental health services and the patient requires
extended inpatient mental health services, the county in which the
proceedings originated shall pay the expenses of transporting the
patient back to the county for the hearing unless the court that entered
the temporary order arranges with the appropriate court in the county
in which the patient is receiving services to hold the hearing on court-
ordered extended inpatient mental health services before the original
order expires.

Id. 8 574.008(a), (c) (V emon Supp. 2001). Although a patient may receive temporary inpatient
mental-health services in a county other than the county that initiated the court-ordered inpatient
mental-health services, the county “in which the proceedings originated” retains jurisdiction to
consider whether the patient requires extended inpatient care. Id. § 574.008(c). Barring an
arrangement between the court that entered the temporary order and the appropriate Howard County
court, the patient must be transported back to the county that entered the temporary order for the
ninety-day hearing and the hearing on a motion for extended care.

In general, “a statutory county court has, concurrent with the county court, the probate
jurisdiction provided by general law for county courts.” TEX. GOV’T CODE ANN. 5 25.0003(d)
(Vernon Supp. 2001); see also TEX. PROB. CODE ANN. §§ 3(bb), 4, 5(b) (Vernon Sup. 2001)
(defining “probate proceedings,” as well as jurisdiction of county courts and district courts with
respect to probate proceedings); id. $9 605, 606(b) (defining county courts’ and district courts’
jurisdiction of mental-health matters). If a county has a statutory probate court, however, “a
statutory probate court is the only county court created by statute with probate jurisdiction.” TEX.
GOV’T CODE ANN. 5 25.0003(e) (Vernon Supp. 2001). “A statutory county court does not have the
jurisdiction of a statutory probate court” that the Texas Probate Code grants statutory probate courts.
Id. 5 25.0003(f). Specifically, the County Court of Lubbock County, one of the counties you
mention, has the general jurisdiction of a probate court, including, we presume, matters related to
court-ordered mental-health services. Id. 6 25.1542(a) (Vernon Supp. 2001) (stating that Lubbock
The Honorable C.E. “Mike” Thomas, III - Page 13 JC-0364

County Court at Law has jurisdiction as provided by Government Code section 25.0003). The Potter
County Court at Law appears to have jurisdiction of probate matters. See id. 0 25.1902(a); see also
id. 0 25.0003(d) - (f).

Even if the appropriate Howard County court has arranged to hold a ninety-day hearing or
a hearing on a motion to extend mental-health care, Howard County may not charge the responsible
county a separate document-preparation fee. Unless specific authority is vested in another county
official, only the commissioners may enter contracts that bind the county. See Tex. Att’y Gen. Op.
No. JC-0034 (1999) at 4 (and opinions cited therein); see also Cameron ‘s Ex’rs v. State, 67 S.W.
348, 360 (Tex. Civ. App.), rev’d on other grounds, 68 S.W. 508 (1902) (suggesting that county
courts may not make contracts without authority of law). While the appropriate county court may
arrange to hold the hearing for another county court, it may not bind the county transferring the case
to pay a document-preparation fee. Moreover, the costs that the responsible county must pay for the
proceeding are restricted by section 57 1.018 of the Health and Safety Code. See TEX. HEALTH &
SAFETY CODE ANN. 9 571.018(c) (Vernon Supp. 2001).

With respect to a hearing on a physician’s application to administer psychoactive medication
to a patient transferred to Big Spring State Hospital from another county, Howard County may not
refuse to conduct the hearing if the application was transferred to a Howard County court. Section
574.104 controls court authority to hear an application to authorize psychoactive medication. An
application to authorize psychoactive medication is filed not by either of the counties involved, but
by a physician, acting on the state’s behalf, who is treating the patient. See id. 5 574.104(a). The
physician’s application to authorize the administration of psychoactive medication is distinct from
the application for court-ordered mental-health services, although the patient must either be under
an order for temporary or extended mental-health services under section 574.034 or 574.035 or must
be the subject of a pending motion for temporary or extended services. See id. 9 574.104(c); see also
id. $5 574.034, .035. Whether a hearing on a physician’s application to administer psychoactive
medication occurs in the county in which the hospital is located or in the county where the
proceedings originated may depend upon whether the psychoactive-medication application is heard
on the same day as the application for court-ordered mental-health services:

The hearing on the application may be held on the date of a
hearing on an application for court-ordered mental health services
under Section 574.034 or 574.035 but shall be held not later than 30
days after the filing of the application for the order to authorize
psychoactive medication. If the hearing is not held on the same day
as the application for court-ordered mental health services under
Section 574.034 or 574.035 and the patient is transferred to a mental
health facility in another county, the court may transfer the
application for an order to authorize psychoactive medication to the
county where the patient has been transferred.
The Honorable C.E. “Mike” Thomas, III - Page 14 JC-0364

Id. 8 574.104(d). Section 574.014(d) thus imposes upon Howard County an obligation to hear an
application that has been transferred to a Howard County court. Even so, the responsible county
must pay costs as required by section 571.018(c)(6) of the Health and Safety Code. See id.
8 571.018(c)(6). S ee g enerah’y Tex. Att’y Gen. Op. No. JC-0287 (2000) at 2-3.

Finally, in those situations in which a Howard County court has jurisdiction, either expressly
under the statutes or through transfer, the Howard County Attorney must represent the State. Article
V, section 21 of the Texas Constitution requires the county attorney to represent the State “in all
cases in the District and inferior courts in” his or her county, unless the county is included in a
district with a district attorney. TEX. CONST. art. V, 9 21. Howard County is part of the 118th
Judicial District, see TEX. GOV'T CODE ANN. 5 24.220(a) (Vernon 1988), and is represented by the
118th Judicial District Attorney, see id. 9 43.153(a). Nevertheless, under section 571.016 of the
Health and Safety Code, it is the Howard County Attorney, and not the district attorney, who
represents the State in these proceedings: “Unless specified otherwise, in a hearing held under this
subtitle: (1) the county attorney shall represent the state; or (2) if the county has no county
attorney, the district attorney, the criminal district attorney, or a court-appointed special prosecutor
shall represent the state.” TEX.HEALTH&SAFETYCODEANN. ~571.016(VemonSupp.2001);see
also Tex. Att’y Gen. LO-94-073, at 2 (“[Slection 571 .016 requires the county or district attorney to
represent a state-employed physician seeking an order under section 574.106 to administer
psychoactive drugs . . . .“).

IV. Conclusion

Under section 571 .018 of the Health and Safety Code, Howard County, as the county that
is home to a mental-health hospital, may not charge the responsible county a separate fee for
document preparation. Rather, costs of the prosecutor’s office in preparing for various proceedings
are included within the “prosecutor’s fees” that may be charged under section 571 .018(c). The
prosecutor’s fees may not exceed $50. See TEX. HEALTH & SAFETY CODE ANN. 9 574.031(k)
(Vernon Supp. 2001).

Howard County may not refuse to conduct a probable-cause hearing under section 574.025
of the Health and Safety Code if an application for court-ordered mental-health services is pending
in the appropriate Howard County court. On the other hand, Howard County courts lack jurisdiction
to conduct either a ninety-day hearing under section 574.034 or a hearing on a motion for extended
care under section 574.035 with respect to a patient receiving temporary inpatient mental-health
services in Howard County under order by another county’s court unless the appropriate Howard
County court has arranged to hold the hearing. With respect to a hearing on an application to
administer psychoactive medication under section 574.104 to a patient transferred to Big Spring
State Hospital from another county, Howard County may not refuse to conduct the hearing if the
application was transferred to a Howard County court. The Howard County Attorney must represent
the State in a mental-health proceeding before a Howard County court.
The Honorable C.E. “Mike” Thomas, III - Page 15 JC-0364

SUMMARY

Howard County, as home to Big Spring State Hospital, may
not charge a county that is responsible to pay the costs associated
with a patient at the hospital a separate fee for document preparation.
Rather, costs that the prosecutor’s office incurs preparing documents
for various proceedings are included within the “prosecutor’s fees”
that may be charged under section 571.018(c) of the Health and
Safety Code. See TEX.HEALTH&SAFETYCODEANN.§ 571.018(c)
(Vernon Supp. 2001). The prosecutor’s fees may not exceed $50.
See id. 9 574.03 1(k).

Howard County may not refuse to conduct a probable-cause
hearing under section 574.025 of the Health and Safety Code if an
application for court-ordered mental-health services is pending in the
appropriate Howard County court. See id. 8 574.025. But, with
respect to a patient receiving temporary inpatient mental-health
services in Howard County under order by another county’s court,
Howard County Courts have no jurisdiction to conduct a ninety-day
hearing under section 574.034 or a hearing on a motion for extended
care under section 574.035 unless the appropriate Howard County
court has arranged to hold the hearing. See id. $6 574.034, .035.
With respect to a hearing on a physician’s application to administer
psychoactive medication to a patient transferred to Big Spring State
Hospital from another county, Howard County may not refuse to
conduct the hearing if the application was transferred to a Howard
County court. See id. 8 574.104. The Howard County Attorney
represents the State in a mental-health proceeding before a Howard
County court.

Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel
The Honorable C.E. “Mike” Thomas, III - Page 16 JC-0364

SUSAN D. GUSKY
Chair, Opinion Committee

Kyrnberly K. Oltrogge
Assistant Attorney General - Opinion Committee