AUSTIN aa. -
WILL WI&SON
ATToRNEYC3ENERAL
December 20, 1962
Honorable Richard E. Rudeloff
County Attorney
Bee county
Beeville, Texas
Opinion No. hW-1509
Re: Whetfier%he Commlssloners~
Cotit may authorize the pay-
ment of expenses Incurred
In the phychiatric examlna-
tlon of.an Indigent prisoner
charged wlth a felony,.for
Dear Mr. Rudeloff: the purposes.stated.
,~
You have requested an oplnion~from tkiis,officeupon
the following,questions:
"(1.) Hay the Co~ssloners Court of Bfie
County authorize the payment of expenses to be
incurred In the phychlatrlc examinationof an
indigent prisoner charged with a ,felouyto de-
termine whether.or not such prisoner was sane
at the time of the commlsslon of the alleged
offense and whether Otinot he Is sane at this
tlme?~
"(2.) Is the Sheriff of Bee County author-,
lzed to Incur bills, In behalf of the county,
for psychiatric examinationsof an indigent
prisoner charged with a felony to determine
whether or not such prisoner was sane at the
time of the commlsslonof the alleged offense
and whether or not he Is sane at this time?"
In regard to the above-quotedquestions you have set
forth the following facts:
II
The attorney for the defendant has
flled'a'm&ion:.wlththe court, along with a sup-
porting affidavit of a local physician, raising
the issue of Insanity. Such motion requested an
order that the defendant be submitted to a prlv-
ate psychiatrist in San Antonio, Texas for mental
examination to determine whether the defendant
Honorable Richard E. Rudeloff, page 2. NW-1509)
was sane or insane at the time of the commission
of the offense and whether he Is sane or insane
atthlstlme. There Is no psychiatric oren:%;-
logical facilities available local1
mated costs of such examinationis $'500.00. -
"The 36th Judicial District Court of Bee
County, the court In which such IndictmentIs
pending, has granted such motion and has Issued
Its order authorlzi
to transpo~n~~~~~~~~h'~s~~~~~~~
In San Antonio, Texas and to such other place
or places as.such doctor may direct for the pur-
pose of making such mental examination."
In a later letter you have also set forth certain addl-
.tlonalfacts to the effect that:
%ri November 24th the Mstrlct Judge ln
: whose court ~suchprisoner's case Is pending IS:
:suedan order whereby he found,that the patient
Is 'mentallydisturbed and vlol'ent.~and that
there is no adequate ,facllltyfor safekeeping
hlm in jail In Bee County. The Court ordered
the prisoner to be transferredto the Bexar
County jail until further ordered~by the Court:"
Article 1037,.VernoncsCode of Crlmlnal Procedure,
provides that:
"Each county shall be liable for all ex-
pense lncurred'onaccount of the safe keeping
of prisoners confined In jail or kept.under
guard, except prisoners brought from another
county for safe keeping, or on habeas corpus
or change of venue; In which cases, the county
from which the prisoner Is brought shall be
liable for the expense of his safe keeping."
Article 1040, Vernonrs Code of Crlmlnal Procedure,
proirldesIn part that:
"For the safe keeping, support andmaln-
tenance of prisoners confined In jail or under
~~~~ssherlff shall be allowed the follow-
:
I,
. . .
Honorable Richard E. Rudeloff, page 3. (ww-1509)
"3. For necessary medical bill and reason-
able extra compensationfor attention to a
prisoner during sickness, such an amount as the
.commisslonerscourt of the county where the'
prisoner Is confined may determine to be just
and proper."
In the case of Bush v. State, 353 S.W.2d 859 (C&n.
App. 1962), the Court stated that:
"The Constitutionof Texas, Art. 1, Sec.
15-a, Vernon's An&St., relates to the commlt-
ment of one found to be Insane. It does not
relate to insanity as a bar to prosecutionor
as a defense In a criminal case. A defendant
In a criminal case may successfullyplead ln-
sanity as a bak to prosecutionor punishment,
-oras a defense, though the evidence may not
be~such as would authorize his conrmitment.
"We find no provision In the conkt&kutlon'
or statutes which requires a court to appoint
a psychlzitrlstfor one charged'wltha arim? or
order that he be sent to a hospital for obser-
vatlon. In Ellzey v. State, 158 Tex.Cr.R,604, ~'
259 S.W.2d 211, thls Court held'that the.law of
this State does not require a trial court to
send a person charged with an offense, prior to
an adjudicationof insanity, to an Institution
for diagnosis or observation. The,prlor adju- ..
dicatlon of insanity of appellant, ln~the lunacy
proceeding, would not require such an order. We
find no error In the court's refusal:"
Upon motion for rehearing the Court, In Bush v.
State, supra, further stated that:
"En a highly professionalbrief and oral
argument, appellant urges that we were In error
In our original holding that he was .notunder
the Constitutionof the United States entitled
to the appointment of a psychiatrist,to be com-
pensated by the State for his examination of
appellant and for his time while testifying, In
the event he concluded that appellant was a
person of unsound mind. This Court does not
turn a deaf ear to appellantts claims of his
constitutionalrights, as will be seen from our
opinion In which we granted relief to him In Ex
-.
I>
. . .
Honorable Richard E. Rudeloff, page 4. Pdw-1509)
parte Rush, 166 Tex.Cr.R. 259, 313 S.W.2d 287.
Rut we are not incllned,toextend the holding of
the Supreme Court of the United States in United
States ex rel. Smith v. Raldl, 344 U.S. 561, 73
S.Ct. 391, 97 L.Ed, 549, when that Court said
*We cannot say that the State has that duty by
constitutionalmandate.*"
In a prior opinion by tNs office, Attorney General's
Opinion No. R-2474 (lgsl), It was held that:
II this office expressly held In Att'y
Cen. Cp: C-4708 (1942) that a County Is liable
under the provisions of Artlcies 1037 and 1040,
V.C.C.P., for the necessary and reasonablemedi-
cal expenses of a prisoner during illness when '
the nrisoner Is confined In jail or under guard.
The reasonableness,as well as the just an&proper
amount of'the charges for such medical treatment
‘isa matter to be determined by the Comm%ssloners
up. (Emphaelsadded)
Attorney Ceneralls Opinion No. R-2474 (1951) further
states that:
Of course, it 5.8for the Comm%sslon-
ers C&t'to determine the reasonablenessof the
claim presented, and the Court may pay only such
amount as It determines to be just and proper."
In view of the language of Articles 1037 and ~1040,
Rush v. State, su ra, and Attorney Qener'al'sOpinion ~-2474
951) T#i e opinion that the Commissioners'Court.
I;fchaik~ %h"the responslblllty,~bystatute, of determMng
the necklty and reasonablenessof medical oare and treatment
;;;z;; to prisoners confined In jail or under guard during
However, we are of the further oplnlon that the
medical &re and treatment provided for in Article 1037 and
1040 Is that medioal oare and treatment necessary to protect
and preserve the health and well-be&rig:of the prisoner, and
would not Include mere medical examinationto determine the
sanity or Insanity of a prisonerwhereby the prisoner would
have available evldenoe to be used as a defensive Issue In
regard to the crime for which he Is charged.
Insofsr aa the Commlssloners~Court has the respon-
slblllty'ofpassing upon the necessity and reaeonablenessof,
any medical care or treatment rendered a prisoner confined in
. -, - t’ -
Honorable Richard E. Rudeloff, page 5. ww-1509)
jail or under guard, the Sheriff can only bind the county for
such medical expenses as are deemed necessary, just and proper
by the CommlsslonerslCourt.
SUMMARY
The CommlsslonerslCourt has the reaponslblllty
of determiningthe necessity and reasonablenessof
medical care and treatment rendered prisoners con-
fined In jail or under guard pursuant to Articles
1037 and 10&I, Vernon's Code of Criminal Procedure.
The Cornmissloners~Court may authorize the pay-
ment of expenses to be incurred In the psychla-
trio examinationand treatment of an Indigent
prlaoner If sald Court determines that such ex-
amination and treatment Is necessary to protect
and preserve the health and well-being of the
prisoner, but this would not include medical or
psychiatric examinationmerely to determlne the
sanity or Insanity of a prisoner whereby the
prisoner would have available evidence to be used
as a defensive Issue ln regard to the crime for
which he Is charged.
The Sheriff can only bind the county for such
medical expenses, POP a prlsoner'ln jail or under
guard, as are,deemed necessary, just and proper by
the Commlsslqners'Court.
Yours very truly,
WILL WILSON
Attorney General of Texas:!
Pat Bslley
PB:wb:zt Assistant
APPROVED:
OPINION COMMITPEE
W. V. tippert, Chalrman
Sola Wilcox
Vernon Teofan
REKBi@DFORTEEATTO~GFNERAL
BY: Leonard Passmore