Hon. Wm. N. Hensley OpInIon No. v-597
Criminal District Attorney
San Antonio, Texas Re: The payment from Coun-
ty funds of fees of
attorneys appointed by
the court to represent
the defendant In lunacy
cases.
Dear Sir:
Reference Is made to your recent request which
reads, In part, ,a8 follows:
"On M&h 9, 1948, we received a
request for an opinion from the County
Auditor In regard to payment of attor-
ney's fees by the County In lunacy cases
under Article 5550, R.C.S. A copy of,
this request Is enclosed.
.~"On:AprIi7, 1948, we rendered our
opinion No. E-103 thereon, answering
said request In the affirmative to the
effect that the attorney's fee provided
by law could be paid out of C,oun$yPu&zds.
A copy of this opinion Is enclosed.
"The CoirntyAuditor now wants us to
secure an opinion from you on the same
question, not being completely sat&fied
that we have settled the law thereon.
"Ue, therefore, respectfully refer
his request to you, together with our
opinion therton, and we desire your opln-
Ion thereto.
The request of the County Auditor Is, In part,
as follows:
1(OnMarch 29th, the Commissioners'
Court passed an order approving the
1. ,,‘,.,
-
ax ea,
Hon. Wm. N. Hensley, page 2 (v-597)
claim of Lester L. Klein, Attorney at
Law, In the amount of $15.00 and auth-
orized me to draw Voucher Warrant In
payment of same.
"This claim of Mr. Klein Is for
representing defendants In three lunacy
cases at $5.00 per case, he having been
appointed by Hon.,Chas. J. Matthews,
Judge County Court at Law No. 2, actlng~.
for Chas. W. Anderson, County Judge Bexar
County,~Texas.. Article 5550, Vernon's
Texas Statutes authorizes the County
Judge to appoint council In lunacy cases
'at a fee not to exceed $5.00 per case &
be taxed as cost In the case.
"This statute does not say that
this fee shall be paid by the County
from County funds. It appears to me
that If there Is no other Statute auth-
orlzlng this fee td be paid from Coun-
,ty funds that It wduld be paid If and
when the cost were collected In each
case.
"Does the Statute permit th$s fee
to be paid from Count,yfunds?" ',
Article 5550, Vi C. S., Is as follows:
"The cause shall be docketed on
the probate docket of :the.CourtIn the
uame of the State of Texas as plaintiff,
and the person charged to be Insane as
defendant. The County Attorney or the
District Attorney In counties having no
County Attorney, shall appear and repre-
sent the State on the hearing, and the
defendant shall also be entitled to COUH-
sel; and In proper cases the County Judge
may appoint counsel for that purpose.
"In cases In which the County Judge
may deem It necessary to appoint counsel
for the defendant, such appointment shall
be noted upon the docket giving the name
of the attorney so appointed, and In cases
In which the County Judge deems It neces-
8, .
Hon. Urn.H. Hensley, page 3 (v-5971
sary a fee may be allowed to counsel
for the defendant In such sum as may
be fixed by the County Judge, and noted
on the docket, In an amount not to ex-
ceed Five Dollars ($5,00), to be taxed
as coats In the case.
Artlhle 4316, V. C. S., provides that:
"When any person IS found to be of
unsound mind or to be an habitual drunk-
ard, the cost of the proceeding shall be
paid out of his estate; or, If his es'-
tate be InsuffIcIent to pay the aame, such
costs shall be paid out of the county
treabury, and the judgment of the court
shall be accordingly. If the defendant
be discharged; the person at whose In-
stance the proceeding was had shall pay
the costs of such proceeding; unless the
Informant be an officer acting In his of-
ficial cap&Ity in filing the Information,
In which cash the costs shall be paid out
of the county treasury.n
we assume that a fee of $5.00 was allowed by
the County Judge In each case.
Article 5550 provides that such fee shall be
taxed as costs. Article 4316 provides how costs shall
be paid In lunacy,cases. Since both the foregoing stat-
utes relate to lunacy oases, they must be oonsldered to-
.~getherIn regard to the taxing of costs. When this Is
done, and In view of the plain language of Article 4316,
It is our opinion that If In such a trial the person Is
found to be of unsound mind, such fee should be paid out
of his estate. But if his estate be Insufficient, then
It should be paid out of the county treasury. If the
defendant be discharged, then the fee should be paid by
the person at whose Instance such proceeding was had,
.unless the Informant be an officer acting within his of-
ficial oapaclty In filing the complaint, In which case
the costs shall be paid out of the county treasury.
SUMMARY
In a lunacy case where the defen-
dant was found to be Insane and the Coun-
ty Judge appointed an attorney to repre-
1. .
Hon. Wm. H. Hensley, page 4 (v-597)
sent defendant and allowed.an attorney's
fee, the fee should be paid out of defen-
dant's estate as part of the costs of suit.
If his estate Is Insufficient the attor-
ney's fee should be paid out of the County
Reasury as part of the posts. If the de-
fendant was discharged, then the fee should
be paid by the person at whose Instance
such proceeding was had, unless the Infor-
mant be an offloer acting within his offl-
clal capacity In filing the complaint, In
which case the costs shall be nald out of
the County ~easurY. Articles-5550 and
4316, V. c. 3.
Your8 very truly,
ATTORNEY GENERAL OF TEXAS
BY
BA:erc:w
AssIst+nt
APPROVED;: