                              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
