      ,    .



                      EA              NEY      GENERAL
                                     %&XAS
                           AUSTIN.   TEXAS     78711
CHAWYORL) CL MARTlN
  A-ORNEY GENERAL
                                 December 5, 1969


     Dr. John Kinross-Wright                 Opinion No. M- 533
     Commissioner,
     Texas Department of Mental              Re:   Whether Article 46.02,
     Health and Mental Retardation                 Section 2(f), Vernon's
     Box S, Capitol Station                        Code of Criminal Pro-
     Austin, Texas 78711                           cedure, authorizes a
                                                   district court, with-
                                                   out the consent of the
                                                   head of a mental hos-
                                                   pital, to order a
                                                   defendant admitted .to
                                                   a mental hospital for
                                                   the purpose of exami-
                                                   nation, as set out in
                                                   the statute, and re-
     Dear Dr. Kinross-Wright:                      lated question.
          You have requested the opinion of this office on the
     following questions:
               'Il. Does Article 46.02, Section 2(f),
               Vernon's Code of Criminal Procedure,
               authorize a district court, without
               the consent or concurrence of the head
               of the mental hospital, to order a de-
               fendant admitted to a mental hospital
               for the purposes therein described?
               “2. In the event a criminal defendant
               is admitted to a mental hospital of
               this State upon order of a district
               court, with or without the consent or
               concurrence of the head of the mental
               hospital, is the county of indictment
               liable to pay expenses incurred by the
               mental hospital in examing, housing and
               feeding the defendant during the course
               of such examination?"
          The statute in question reads as follows:



                                 -2537-
                                                              .   .




Dr. John Kinross-Wright,    page    2,   (M- 533)


            "(f) Evidence. (1)    The court may,
        at its discretion appoint disinterested
        qualified experts to examine the defen-
        dant with regard to his present compet-
        ency to stand trial and as to his sanity,
        and to testify thereto at any trial or
        hearing in connection to the accusation
        against the accused.
           "(2) Such appointed experts shall be
        paid out of the General Fund of the county
        where the indictment was found or infor-
        mation was filed.
            ‘(3)  If the defendant is free on bail,
        the court  in its discretion may commit him
        to custody pending such examination.
            't4) No statement made by the defen-
        dant during examination into his compet-
        ency shall be admitted in evidence against
        the accused on the issue of guilt in any
        criminal proceeding no matter under what
        circumstances such examination takes place.
            “(5) Any party may introduce other com-
        petent testimony regarding the defendant's
        competency."
        Article 46.02 does not expressly provide that an
accused can be sent to a state mental hospital for ex-
amination and does not indicate whether a court order
directing that an accused be examined at a state hos-
pital would be mandatory upon the institution. The
statute    provides in Section 2(f) (1) for the appointment
of qualified experts to examine an accused to determine
the accused's sanity and competency to stand trial.
Section 2(f) (3) provides that the court    may commit a
defendant to custody pending a sanity examination, but
this provision does not expressly refer to custody in
state hospitals. Should a mental hospital be used for
the examination of a criminally accused, Section 2(f)
(3) would empower a court    to order the accused to remain
in custody at the hospital instead of jail, although the
examination could be made in jail.
     The procedure for commitment of a person accused of
crime to a state mental hospital is established by Arti-


                           -2538-
     .




Dr. John Klnross-Wright,      page 3,   P-532)


cles 46.01 and 46.02, Vernon's Code of Criminal Procedure.
For mental illness arising after conviction, a prisoner can
be transferred from the state prison system or the count
jail to a state hospital under the,authority of Article E6.01,
although the transfer can be made only when the head of the
hospital concurs. When insanity is raised as a defense, a
defendant can be committed under Article 46.02 to a mental
institution upon a jury finding that he is insane. The state
hospitals must accept patients committed in this manner. The
provisions for commitment in civil proceedings under Article
5547-1, et seq, Vernon's Civil Statutes, do not apply to
 ersons accused of crimes. No authority other than Article
 6.02, Section 2(f) (l), exists for the courts to appoint
‘6
medical experts to examine a criminally accused prior to
trial. Before this provision was enacted, this office held
that a sheriff or county attorney had no authority to demand
and receive an examination at a state hospital of a person
accused of a felony. Texas Attorney General's Opinion No.
o-3691 (1941).
     The state mental hospitals have limited facilities
and personnel; and numerous commitments under Section 2(f)
might cause interference with the normal treatment of persons
committed to the hospitals under other provisions of Arti-
cles 46.01 and 46.02, Vernon's Code of Criminal Procedure,
and the Texas Mental Health Code, Article 5547-1, et seq,
Vernon's Civil Statutes. To assume that the legislature in-
tended to create a situation which would impair the efficiency
of state ho8pitals is unreasonable. Also the Texas Depart-
ment of Mental Health and Mental Retardation has interpreted
the statute to mean that the state mental hospitals are not
compelled to receive patients under the procedure outlines
in Section 2(f). The courts    will give considerable weight
to departmental construction unless clearly wrong. Thompson
v. Calvert, 301 S.W.2d 496 (Tex.Civ.App., Austin, 1957, no
writ)* 53 Tex.Jur.2d 259, Statutes,   Section 177. This
offi& is of the opinion that the provisions of Article
46.02, Section 2(f), do not authorize a district or county
court to order a criminal defendant admitted to a state
mental hospital for examination without the consent of the
head of the mental hospital.
     This opinion is concerned only with the question of
whether a state mental hospital can be ordered, without the
consent of the head of the hospital, to admit a criminal
defendant for examination; it is not concerned with the
question of whether a court can order a particular medical
expert to examine the defendant.

                           -2539-
                                                        .      .




Dr. John Kinross-Wright,    page    4,   (M-   533)


     The expert
           . .. witnesses appointed by the court
                  .. county~as                   are to
oe compensatea oy tne           authorized by Section 2(f)
(2).  A medical expert who is required to make an exam-
ination in preparation for testifying later at a trial is
entitled to compensation. Summers v. State, 5 Tex.Crim.
Rep. 365, 378 (1879); 61 Tex.Jur.2d 577, Witnesses, Section
39.
     This office has heretofore concluded that the county
has the primary responsibility for payment of expenses to
be incurred in the medical care , psychiatirc examination,
and treatment of an indigent prisoner where it determines
that such care, examination and treatment are necessary to
protect and preserve the health and well-being of the pris-
oner. However, the further opinion was expressed that this
responsibility did not include medical or psychiatric ex-
amination merely to determine the sanity or insanity of a
prisoner whereby the prisoner would have available evidence
to be used as a defensive issue  in regard to the crime for
which he is charged. Attorney General Opinion No. WW-1509
(1962).
     Since that time, the Legislature, in Section 2(f) (2)
of Article 46.02 has expressly authorized the liability to
be assumed by the county for appointed medical or psychi-
atric experts to examine the defendant as to his sanity or
insanity to stand trial and testify where "indictment was
found or information was filed." Section 2(f) (3) of
Article 46.02 also provides that if the defendant is free
on bail, the court in its discretion may commit him to
custody pending such examination.
     Consequently, there being no statutory authority for
imposing the liability upon the state mental hospital or
agency, it follows that the hospital is entitled to be re-
imbursed by the county for the medical care and examination.
See Article 1037, Vernon's Code of Criminal Procedure, im-
posing upon the county liability 'for all e$pense incurred
on account of the safekeeping of prisoners, whether kept
in jail or kept under guard.
     It is our opinion that when a state mental hospital
accepts a defendant for examination under Section 2(f), the
hospital is entitled to reimbursement by the county for such
expenses incurred as are reasonably necessary and incidental
to the proper examination of the individual. It is common
knowledge that it is often necessary in some ~individual
cases for the psychological examination to require obser-

                           -2540-
Dr. John Kinross-Wright,      page 5,   (M-533)


vation by the expert overnight and for some extended period
of time. We thus conclude that when the defendant is com-
mitted to custody for examination under court order, the
reasonable expense of examining, housing and feeding of a
defendant, along with such other expense incurred by the
court-appointed expert as a necessary and incidental part
of the examination are such expenses that come within the
contemplation of Article 46.02, Section 2(f) and should be
paid by the county.

                        SUMMARY
            Article 46.02, Section 2(f) (l), Vernon's
     Code of Criminal Procedure, does not authorize a
     court to commit a criminally accused to a state
     mental hospital for examination without the con-
     sent of the head of the hospital.
            The state hospitals are entitled to pay-
     ment by the county under Article 46.02, Section 2
     (f) (2) for the expenses of examining and the
     housing and feeding of a defendant, prescribed by
     a court-appointed expert, where reasonably neces-
     sary and incidental to the proper examination of
     the individual.




                                          General of Texas
Prepared by Roland Daniel Green, III
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Alfred Walker
Arthur Sandlin
Ralph Rash
Robert Owen
MEADE F. GRIFFIN
Staff Legal Assistant
NOIA WHITE
First Assistant            -2541-
