Eonorable Mark 8. Dettman               Opinion No. ~~-643
Midland County Attorney
P. 0. Box 2559                          Re: Liability of a county for
Midland, Texas   79702                  medical care of indigent inmates
                                        of a county jail

Dear Mr. Dettman:

     You inquire about liability for medical treatment for nonresident
Indigent prisoners incarcerated in the Midland County jail. Speci-
fically, you ask whether the term "welfare patient" as used in the act
creating the Midland County Hospital District includes nonresident
indigent prisoners indarcerated in the county jail when the prisoners'
residences are in areas not served by a hospital district. We
conclude that responsibility for medical treatment for a "welfare
patientu incarcerated in the county jail whose residence is not within
a hospital district is determined by article 104.002 of the Code of
Criminal Procedure.

     The Midland County Hospital District is created under authority
of article IX, section 9. of the Texas Constitution, by chapter 112,
Sixty-fifth Legislature, 1977. See V.T.C.S. art. 4494q. The district
includes all of Midland County. Section 19 of that act provides
principally for liability for care and treatment of a patient residing
within that hospital district who has been admitted to the district's
facilities. It also contains the following provision:

          If a welfare patient is admitted to the district's
          facilities and is not a resident of the district,
          the district may seek reimbursement from the
          county of the residency of the patient and may sue
          for reimbursement.

Acts 1977. 65th Leg., ch. 112, 519. at 242.

     The section-by-section analysis of the bill creating the Midland
County Hospital District includes the following analysis of section
19:

             Section 19. Board to inquire into patient's
          ability to pay with recourse as well to relatives.
          Inability to pay will cause the patient to become
          a charge on the District. Disputes, hearings,
          appeals.   Board may seek reimbursement from


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Eonorable Mark H. Dettman - Page 2   UM-643)




          indigents home county (indigent defined as welfare
          patient). May sue.

See Bill Analysis to S.B. No. 1210 prepared for House Committee on
Intergovernmental Affairs, filed in Bill File to S.B. No. 1210,
Legislative Reference Library.    Hence, it seems clear that the
legislature intends "welfare patient" in that act to be synonymous
with "indigent patient."

     Expenses for prisoners confined In a county jail are the subject
of article 104.002 of the Code of Criminal Procedure, which provides
that:

             (a) Except as otherwise provided by this
          article, a county Is liable for all expenses
          incurred in the safekeeping of prisoners confined
          in the county jail or kept under guard by the
          county. If a prisoner is transferred to a county
          from another county on a change of venue. for
          safekeeping, or for a habeas corpus hearing. the
          county transferring the prlsoner'is liable for the
          expenses described by this article.

Article 104.002 is a recodification of several procedural statutes,
including articles 1037 and 1040 of the Code of Criminal Procedure
(Vernon 19251, which governed the liability of a county for the
medical care and treatment of indigent prisoners.     Article 1037
provided that:

            Each County shall be liable for all expenses
         incurred on account 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. (Emphasis added).

Article 1040 provided in part as follows:

             For the safekeeping, support and maintenance of
          prisoners confined in jail or under guard, the
          sheriff shall be allowed the following charges:

             .   .   .   .

             3. For necessary medical bill and reasonable
          extra compensation for attention to a prisoner
          during sickness, such an amount as the commis-
          sioners court of the county where the prisoner is
          confined may determine to be just and proper.
          (Emphasis added).


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Eonorable Mark H. Dcttman - Page 3   (JM-643)




     Article IX, section 9, of the Texas Constitution, under which the
Midland County Hospital Authority is created, provides, in part, that
a hospital district created thereunder

          shall assume full responsibility for providing
          medical and hospital care for its needy in-
          habitants. . . .

On several  occasions, this office has considered the liability of a
county for medical services provided to indigent persons incarcerated
in county jails when the person is a resident of a hospital district.
Those opinions concluded that the hospital district of which an
indigent prisoner Is a resident, rather than the county of incarcera-
tion, is liable for the medical care and treatment of an indigent
prisoner. See Attorney General Opinions JM-487 (1986); H-703 (1975);
M-870 (1971r The rationale for that conclusion is that articles 1037
and 1040 of the Code of Criminal Procedure must yield to the express
broad language in article IX, section 9, of the Texas Constitution.

     Subject to constitutional provisions, the liability for care and
treatment of indigent persons and Indigent prisoners is now governed
by article 104.002 of the Code of Criminal Procedure and the Indigent
Health Care and Treatment Act. codified as article 4438f, V.T.C.S.
Under the Indigent Health Care Act, (1) a county is liable for health
care assistance of its eligible residents who do not reside in an
area served by a public hospital or hospital district, (2) a public
hospital is responsible for health care assistance to eligible
residents of the area served by the hospital, and (3) a hospital
district is liable for.health care services as provided by the Texas
Constitution and the statute creating the hospital district.

     The Indigent Health Care Act does not expressly amend or repeal
any part of articles 1037 and 1040. A repeal of statutes by implica-
tion is never favored or presumed. It has long been well established
that a repeal by implication will be adjudged only if that result   is
inevitable or is plainly intended by the legislature. See Texas 6
N.O. Railway Co. v. Kelso Building Material Co., 250 S.W.2d426, 430
(Tex. Civ. App. - Galveston 1952, writ ref'd n.r.e.); Berry V. State,
156 S.W. 626, 635 (Tex. Grim. App. 1913); Parshall V. State, 138 S.W.
759. 765 (Tex. Grim. ADD. 1911). Statutes which deal with the same
general subject and ha-& the same general purpose are considered as
in para materia and must be construed together and harmonized. if
possible, so as to give effect to both statutes, with a special
statute governing a general statute in the event of any conflict. See
Lingner v.,Haley, 277 S.W.2d 302, 306 (Tex. Civ. App. - Amarillo 1954,
writ dism d); Hines V. State, 515 S.W.2d 670, 675 (Tex. Crim. App.
1974).

     The Indigent Health Care Act, article 4438f. is a broad statute
providing for the expenses of health care for indigent persons in
general. Article 104.002 of the Code of Criminal Procedure deals
specifically with expenses incurred in the safekeeping of prisoners



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Honorable Mark H. Dettman - Page 4      (JM-643)




confined in a county jail. A general law will not ordinarily be held
to have repealed by implication a particular or special law although
both relate to the same subject. The more particular law usually is
construed as constituting an exception to the general law. American
Canal Co. of Texas v. Dow Chemical Co., 380 S.W.2d 662, 666 (Tex. Civ.
APP. - Houston 1964. writ dism'd).

     We conclude that article 104.002, which provides that the county
of incarceration is liable for all expanses including medical care of
an indigent prisoner, constitutes an exception to the Indigent Realth
Care Act for an indigent person who is not a resident of a hospital
district.   It follows that the provision of the Midland County
Eospital District Act which authorizes the hospital district to sue
for reimbursement from the county of residence of an indigent patient
who is not a resident of the Midland County Eospital Dfstrict is not
applicable to an indigent prisoner in the Midland County jail whose
residence is in an area not within a hospital district and, hence, not
governed by article IX, section 9 , of the Texas Constitution.

                              SUMMARY

              Medical care and treatment for a nonresident
         indigent prisoner in a county jail who is a
         resident of an area within a hospital district is
         the responsibility of the hospital district, as
         provided by article IX, section 9. of the Texas
         Constitution. Medical care and treatment for a
         nonresident indigent prisoner In a county jail
         whose residence is not within a hospital district
         is the responsibility of the county of incarcera-
         tion, as provided by article 104.002 of the Code
         of Criminal Procedure.

                                             Very truly yours,


                                        Ll        A
                                             JIM     MATTOX
                                             Attorney General of Texas

JACK HIGHTOWKR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Nancy Sutton
Assistant Attorney General




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