             THE    ATTORNEY         GENERAL
                       OF    TEXAS




Honorable Robert T. Jarvis       Opinion No.   JM-1041
Grayson County Attorney
Justice Center                   Re: Costs for medical    exa-
Sherman, Texas   75090           minations  of rape    victims
                                 under article 4447m, V.T.C.S.
                                 (RQ-1661)

Dear Mr. Jarvis:

     you ask about the proper construction of article 4447m,
V.T.C.S., which governs the payment  of the cost of medical
examinations of victims of sexual assault. Article    4447m,
V.T.C.S., provides:

           Section  1. Any law enforcement     agency
        that requests a medical    examination  of a
        victim  of an alleged sexual assault for use
        in the investigation or prosecution of the
        offense shall pay all costs of the examina-
        tion.

           Sec. 2. This act does not require a       law
        enforcement  agency to pay any costs          of
        treatment for injuries.

     you first ask about the proper construction of the
phrase "all costs of the examination.B'  In your letter
requesting an opinion you state:

        It is my opinion that 'all costs of the
        examination'   is  interpreted     to    include
        emergency   room fee,    physician    or   nurse
        examiner fee, evidence collection kit cost,
        x-rays, diagnostic    test  (pregnancy, toxi-
        cology if survivor was involuntarily drugged,
        VDRL, chlamydia for children under 12 years
        of age). This would not include testing      for
        HIV or any treatment or admission costs.

     Article 4447m, V.T.C.S., has never been construed by
any court or attorney general opinion. The statute was




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Honorable Robert T. Jarvis - Page 2     (JM-1041)




first enacted in 1973, Acts 1973, 63d Leg., ch. 299, at 704
[hereinafter H.B. 8571, and amended in 1983. Acts 1983,
68th Leg., ch. 977, § 11, at 5321 [hereinafter H.B. 20081.
The bill analysis   for H.B. 857 prepared    for the House
Committee on Criminal Jurisprudence contains the following
"Background Information":

            Presently many rape victims are required
         to pay for medical examinations     made   in
         connection with investigation or prosecution
         of the offense.   It is felt that this cost
         should be born [sic] by the law enforcement
         agency involved.

Bill Analysis, Tex. H.B. 857, 63d Leg. (1973).

      The bill analysis sets forth the purpose of the bill:

            To require law enforcement agencies to pay
         the costs of any medical examination made  in
         connection with the investigation or prosecu-
         tion of an alleged rape.



     The Wection by Section Analysis" of the bill    analysis
sets forth the following:

            Section 1. Provides that a law enforce-
         ment agency which requests a medical examina-
         tion of a victim of an alleged rape for use
         in investigation   or   prosecution   of  the
         offense shall pay for the examination.

            Section 2. Provides that the law enforce-
         ment agency is not required to pay for the
         treatment of injuries.

Id.
     The 1983 amendment to article 4447m, V.T.C.S., was part
of an omnibus bill designed to classify thr offenses of rape
and sexual abuse of adults and children as "sexual assault"
and to remove such offenses  from the Penal Code chapter  on
Sexual Offenses.  Tex. H.B. 2008. The %ection by Section
Analysis" of the bill analysis indicates that the amendment
to article 4447m was designed to "make conforming  changes";




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Honorable Robert T. Jarvis - Page 3     (JM-1041)




thus, the amendment replaced the word 1°rape18
                                             with the phrase
"sexual assault.t' Id.

      There is then no indication in the legislative      his-
tories of article    4447m, V.T.C.S., and its amendment   that
the legislature   intended with its use of the phrase "medical
examination"    that any    specific medical procedures     be
included or excluded.    In construing civil statutes, we are
required to attempt to ascertain      legislative  intent and
consider the old law, the evil to be addressed, and the
proposed remedy. Gov't Code 5 312.005. Because the facts
involved in any alleged episode of sexual assault will vary
from instance to instance, we construe "medical examination"
to include any recognized medical procedure whose perfor-
mance reasonably would be expected to produce evidence that
would tend to support or refute allegations         of sexual
assault in any specific episode. A determination     regarding
the suitability    or necessity   of any particular    medical
examination procedure    in any instance of alleged     sexual
assault is a matter of fact, the initial determination      of
which must lie with the law enforcement agency making      the
request for a medical examination.

     We understand you to ask next whether the investigating
law enforcement agency is responsible   for all costs of the
examination, even in an instance in which no agency peace
officer requests the initial medical examination.   We answer
your question in the affirmative.  The act neither requires
nor presupposes that a peace officer requests the medical
examination: the act by its very terms requires only that
any law enforcement agency that requests a medical   examina-
tion of a victim of an alleged sexual assault that is to be
used in the investigation or prosecution of the offense pay
all costs of the examination.  The act by its terms does not
permit or require that the investigating     law enforcement
agency pay the cost of any medical examination       that it
itself does not request.

     Finally, you ask about the proper construction of the
phrase "investigating  law enforcement agency." We under-
stand you to ask whether the phrase includes only a city
police department  or a county sheriff's office    in whose
jurisdiction the alleged incident occurred or whether    it




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Honorable Robert T. Jarvis - Page 4       (JM-1041)




includes the local district or criminal district  attorney's
office whose responsibility it is to prosecute the case.1

     The statute itself does not define "investigating   law
enforcement agency," nor does Texas law contain a definition
of "investigating   law enforcement agency" that generally
would be applicable.   Courts have construed the phrase "law
enforcement agency" to include various      state and local
officers and employees, depending upon the intention of the
legislature at the time.

      For example,   a penitentiary,    a county department    of
corrections, a state agency denominated        the Division    of
Alcoholic Beverage Control that oversaw the state's regula-
tion of alcoholic beverages, a coroner's office, as well as
police, prosecutors and even the courts and a grand jury,
have been declared    *'law enforcement   agencies" for certain
purposes.   See, e.ac, puffin v. Carlson, 636 F.2d 709      (D.C.
Cir. 1980); P ovle v. Scott, 583 P.2d 939 (Cola. Ct. APP.
1978)   (prison:    or penitentiaries      as law    enforcement
agencies); Heltzel      Th ma    516 N.E.2d 103 (Ind. Ct. APP.
1988) (coronor~s ofTice is YAW enforcement agency) : Criminal
Injuries Comoensation Bd. v. Gould        331 A.2d 55 (Md. Ct.
APP-  1975)  (police, prosecutors,   ckrt,   and grand jury are
law enforcement agencies for certain purposes): Matter of C.
Schmidt & Sons, Inc., 399 A.2d 637 (N.J. 1979) (Division of
Alcoholic Beverage Control,     a state agency, as a law en-
forcement agency).

     On the other hand, a federal agency denominated     the
Department   of Income Maintenance   that oversaw    federal
administration of state investigations of medicaid fraud, a
state racing commission, and even a city police department,
have been held &      to be law enforcement    agencies  for



     1. We note that in your letter requesting an opinion
you suggest that article 4447m, V.T.C.S., has been construed
to require, in some instances, the victim of alleged   sexual
assault to pay the costs of any relevant medical     examina-
tion. No reasonable reading of article     4447m, V.T.C.S.,
admits of such a construction;   the act is clear that any
investigating law enforcement agency that requests a medical
examination of a victim of alleged sexual assault in connec-
tion with the investigation  or prosecution of such assault
must pay the costs of such a medical examination.




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Honorable Robert T. Jarvis - Page 5        (JM-1041)




specific purposes under the particular statutes    involved.
Mah r v. Freedom of Information Comm'n 472 A.2d 321   (Conn.
198:)   (Department of Income MainteAance   is not a law
enforcement agency): Maietta V.    w Jersev Racina   Comm'n,
459 A.2d 295 C.N.J. 1983).

     We may not construe statutes    in such a way as to
ascribe to the legislature an intention to do an unjust   or
unreasonable thing if it is reasonably susceptible     of a
construction   that will not accomplish    such a    result,
Anderson v. Penix, 161 S.W.2d 455 (Tex. 1942), or that shows
the legislature's intention to have been otherwise.    State
Hiahwav DeD't v. Gorham, 162 S.W.2d 934 (Tex. 1942).      We
conclude that the construction of the phrase  "investigating
law enforcement agency" that best comports with the evident
legislative   intent  is   one that    would   require   the
investigating agency that requests such an examination,
whether that be a city police department, a county sheriff's
department, or a local prosecutor's office in any particular
instance to pay for any necessary medical examination.

                       SUMMARY

           Article   4447m,   V.T.C.S.,   requires
        investigating   law enforcement    agency thzi
        requests   a medical    examination   that   is
        necessary for the investigation or prosecu-
        tion of an alleged episode of sexual assault
        to pay for the costs of such an examination.
        The phrase "medical examination" includes any
        recognized medical procedure     whose perfor-
        mance reasonably would be expected to produce
        evidence that would tend to support or refute
        allegations of sexual assault in any specific
        episode. A determination of the suitability
        or necessity of a particular medical examina-
        tion procedure   in any instance of alleged
        sexual assault   is a matter of fact, the
        initial determination of which must lie with
        the investigating    law enforcement     agency
        making the request for a medical examination.
        The act does not require that a peace officer
        request a medical   examination: the act only
        requires the investigating     law enforcement
        agency to pay for the cost of such a medical
        examination when that agency requests that
        such an examination be conducted.    The phrase
        "law enforcement    agency"   includes a city




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Honorable Robert T. Jarvis - Page 6     (JM-1041)




        police department, a county sheriff's office,
        or a local prosecutor's office.




                                     Attorney General of Texas

MARYKELLRR
First Assistant Attorney General

Lou MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General




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