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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
HOAOPabh B. B. Caudle
County Attorney
Franklin County
Mt. Vernon, Texas
Dear Sirr
Your recent rOA 0' thf.3 ChpCWt-
ment on the quest-ions d has be8A received.
Wo quote from your l:$tt& ~~/follovsr
the restoration
of findings: and
that all aost
y the County.
asd t?iVil 8tlLtUt6E,
that Officepe
as are nov al-
sdemeanor
ts as is con-
'Secondt Is the County Attorney allcwed
a fee for participation Fn a hearing on rastora-
tiOA of sanity and If 80 , under what airaumatanaee?
i
Honorable F. B. Caudle, Page 2
"The usual procedure la the party seeking
relief come8 to the County AttorAey or the
County Judge vho refers him to the County At-
torney to draw up the proper affidavit for
the doctor to sign. The afffdavit is filed:
the County Judge aaks the County Attorney
to make an investigation of the issue and to
be present and to appear aa counsel at the
hearing.
"The above aectlon provides that if there
appear8 no doubt as to said isaue of aanlty the
Judge may proceed to trg the case vithout the
intervention of a jury. The County Attorney
took part in the hearing and conaurred vith
the Judge that there vas no doubt as to such
imue, VhereUpOA the Judge found the party of
sound mind and requested the County Attorney
to drav up a judgment refleatlng hla deciaiOA.
IA event the County Attorney concurftvith the
Judge on the question of the issue of sanity
should the County Attorney file a vritten
anaver to that effeat. In event the Oountg
Attorney doeta not agree with the Judge on
the Laaue of sanity and contests saa!e,would
the County Attorney be entitled to a fee if
the party ia found to be of sound mind?
"In short, when la a County Attorney al-
lowed a fee for services In a case under said
seation?
‘In view of Artiale 5561, above meAtlOAed,
vhtch allows the same fee aa in misdemeanor
ca6ea for servlaes in a lunsay trial, I con-
aluded that the mame fee ($10.00) Is a prop-
er charge for the County Attorney under Sea.
4 of the above article IseAtiOAedherein under
the foregoing state of facta, and that the
County Judge, County Clerk, and Sheriff would
be entitled to fees fop aeaioer rendered
undsr mid Sec. 4."
Seotlona 4 aad 5 of Article 556l.a, Vernonts Annotated
Civil Statutea, read aa follovar
"Sea. 4. Upon the filing in the oounty
court IA vhioh a person var aonvioted or in
Honorable F. B. Caudle, Page 3
the aountg court of the county in vhlch a
person Is located at the time he is alleged
to have had his right mind restored, Lnfor-
nitttion iA writing and under oath made by a
physiaian legally licensed to practiae medicine
Fn Texas, that a pertton not ahapged uith a
criminal offense, who has Won adjudged to be
of unsound mind, has been restored to his
right mi.nd, the judge of said aourt &all
forthwith, either in term time or vaaatlon,
order saFd peraon brought before him by the
sheriff of the county and if mid issue be in
doubt said judge shall cause a juq to be swn-
moned and lmpaneled IA the same manner aa is
provided for in Section 3 hereof and ahalf
proaeed to the trial of aaid issue, OF if there
appears no doubt aa to said issue, maid judge
may try the same without the intervention of a
jury, and if said person shall be found to be
of sound mind, a judgment shall be entered
upon the mlnutes of said oourt reolting and
adjudging such faot and said person shall, if
then under restraint, be Immediately discharged,
or Zn the event he shall be found to be still
of unsound If&Ad, he shall be returned by the
county aourt to the place of restraint from
vhlch he had been prevlously~ordered, and the
origin&, otier of aoaaitment shall eontFnue Ln
full force and effeot, AJ.1 aostr of pwaeed-
lngs of restoration shall be paid by the county.
‘Sea. 5. This Aot shell be oumulative of
Artfoleu 5550 to 5561 lnolnaive of Title 92,
Revtaed Civil Statutes of the State of Texas,
1925 revlslon.”
Articles 555Q--556$, inclusive, Vernon’s Annotated
Civil Statutea, and the first three section6 of Artlole 556la,
provide for the apprehonaion, arrert and trial of persona not
oharged with or-1 offems , alleged to be of unsound mind.
ft la fuvthel provided in saoh oases that the officer ahall
be allowed the same feel a8 are nov alloved for 8imll8F ~errloes
paff’ormed in misdemeanor aams, and the jurolra shall se& be al-
lowed a fee of One Dollar ($l.OO), to be pald out of the estate
of the defendant if he ha8 an estate, othervlse by the aounty on
acaounte approved by the oounty judge. Wiado not think that the
above statutee settbg forth the prooedupe mentioned therein aad
. .
Ronorable F. 3. Caudle, Page 4
providing certain compensation for officers have any appllca-
tlon concerning or regarding restoration proceedings as men-
tioned Ln Section 4 of Article 556l.a.
The manner and method of e restoration proceeding
or hearing Is speclflcallg set out in Section 4, quoted above,
and no duty 1s imposed upon the county attorney to represent
the State ln such a hearing or proceeding. The provision of
Section 4, supra, provldlng "all coats of proceeding8 of res-
toration shall be paid by the county" 1s vague, uncertain,
ad indefinite, We believe the Legislature intended that all
costs be paid in such proceedings, however, no method to de-
termlne the smount of such costs is prescribed as there Is no
"yard stick" by which to measure the amount of such costs.
We think the provision "all coats of proaeedlngs of restora-
tion shall be paid by the county" is meaningless, and of no
effect.
It must be remembered statutes prescribing fees for
public officers are strlctlv construed: and hence a rirrhtto
fees may not rest in implio~tlon. McCalle v. City of Rockdale,
246 3. W. 654.
The Constitution fixed the compensation of certain
officers snd authorized the Legislature to provide by law for
the compensation of all officers, servants, agents and public
contraotors. Pursuant to the authority thus conferred, numerous
statutes have been passed fixing the compensation of various
classes 0r orricers. An offlaer may not claim or reach any
money without a lav authorizing him to do so, and clearly fixing
the amount to which he la entitled. Blnford v. Roblnson, 244
3. W. 807; McLennan County v. Boggess, 217 s. W. 346; Dualoa v.
Harris County, 291 3. W. 611, affirmed 298 3. W. 417; Crosby
County Cattle Company v. McDelmett, 281 3. W. 293.
In view of the roregotng, you are respectfully advised
that it is the,oplnlon of this department that there is no duty
Imposed upon the county attorney to represent the State in such
proaeedlngs es provided by Section 4 of Article 5561e, and said
statute or any other statute does not provide any fees for the
county attorney or any other officer conducting such hearings.
Trusting that the foregoing fully ansvers your Inquiry,
we are
Yours very truly
ATTORREY ORBERAL
Ardell Wllll~~~~
AWrRS Asslstant-