                             QBffice     of ttp     SWmep            &Beneral
                                            .&ate of 4Eexae
DAN MORALES
 ATTORNEY
      GENERAL
                                             September 23, 1996

     The Honorable Cindy Maria Gamer                     OpinionNo. DM-413
     District Attorney
     349th Judicial District                             Re: Whether a county is liable for the
     P.O. Box 1076                                       payment of medical expenses that a county
     Crockett, Texas 75835                               jail inmate who is not an eligible county
                                                         resident under chapter 61 of the Heahh and
     The Honorable Joey L. Boswell                        Safkty Code incurs (RQ-685,lDS 27238)
     Comanche County Auditor
     courthouse
     Comanche, Texas 76442

     Dear Ms. Gamer and Mr. Boswell:

             Ms. Garner has requested our opinion as to whether a county is liable for the
     payment of me&A expenses incurred by an inmate in the county jail who cannot prove he
     or she is indigent. By “indigent,” we understand Ms. Gamer to refer to an “eligible
     resident,” as section 61.002(4) of the Health and Safety Code defines that term.’
     Ms. Gamer indicates that, at present, the Houston County Hospital District and Houston
     County disagree as to the resolution of the issue: the hospital district contends that the
     county must pay the medical expenses of a noneligible inmate, while the county argues
     that a noneligible inmate directly should receive the bii for any necessary medical
     expenses.2

             Similarly, Mr. Boswell asks which entity is responsible for the cost of medical
     services rendered to an inmate in the Comanche County Jail in the following situation:

                X, a resident of the Comanche County Hospital District, was incar-
                cerated in the Comanche County Jail. Upon being incarcerated X
                was taken by a Comanche County Deputy Sheriff to the Brownwood
                Regional Medical Center in Brown County, Texas, for emergency


              ‘An ~eligible resident” for pmposos of chapter61 of the Health and Safety Code is h person who
     meets the income and resources requirements established by tb[e] chapter or by the govemmcntal entity,
     public hospital, or hospital district in whose jurisdiction the pemoa resides.” Health & Safety Code
     8 61.002(4).

               lThe qwstion before us here concems tbc medical costs a noneligible inmate of a county jail
     inaus; it tberoforo differs Ilium the question before us io Attorney Gcneml opinion DM-225. lo that
     opinion this office considomd wh&er a coonty was liable for the costs of medical setvia provided to
     eligible inmates of the county jail. Attorney General Opinion DM-225 (1993).
The Honorable Cindy Maria Gamer - Page 2          (oM-4 13)
The Honorable Joey L. Boswell




          treatment. Thus[,] medical expenses were incurred in Brown County
          for treating X.       The Comanche County Sheriff’s Department
          assumed that X was indigent, but there was no determination made
          as to the indigency of X. The Comanche County Hospital District
          was not notified since it does not have a detoxification facility for
          treating ethanol alcohol addiction whereas u Brown County.       does
          have such a facility.
We believe that our answer to Ms. Garner’s question will answer Mr. Boswell’s question
as well.

        Article 104.002(d) of the Code of Criminal Procedure resolves the question.
Because the legislature amended subarticle (d) twice in 1991. by the passage of Senate Bii
404 on March 21, 1991, and by the passage of House Bill 1652 on May 25, 1991, we
must consider which version controls. Senate Bill 404 is recorded in the session laws as
Act of March 21, 1991,72d Leg., RS., ch. 14, § 284(19), 1991 Tex. Gen. Laws 42, 223
(“chapter 14”); House. Bill 1652 is recorded in the session laws as Act of May 26, 1991,
72d Leg., RS., ch. 434, 5 1, 1991 Tex. Gcn. Laws 1597, 1597-98 (“chapter 434”).

         In Attorney General Opinion DM-225, we determined that the legislature intended
chapter 434 to prevail over chapter 14. Attorney General Opinion DM-225 (1993) at 3
n. 1. Chapter 14 was a nonsubstantive amendment to the existing subarticle (d) that the
legislature enacted to conform the provision to the codification of the Indigent Health
Care and Treatment Act as chapter 61 of the Health and Safety Code. Id. Chapter 434,
on the other hand, effected substantive changes to subarticle (d). See id.

       Article 104.002(d) provides as follows:

                A person who is or was a prisoner in a county jail and received
          medical, dental, or health related services from a county or Q hoqitil
          cktrict shall be required to pay for such services when they are
          rendered. If such prisoner is an eligible county resident as defined in
          Section 61.002, Health and Safety Code, the county or hospital
          district providing the services has a right of subrogation to the
          prisoner’s right of recovety t+om any source, limited to the cost of
          services provided. A prisoner, unless the prisoner fully pays for the
          cost of services received, shall remain obligated to reimburse the
          county or hospital district for any medical, dental, or health services
          provided, and the county or hospital district may apply fbr
          reimbursement in the manner provided by Chapter 61, Health and
          Safety Code. A county or hospital district shah have authority to
          recover the amount expended in a civil action.

We understand both of you to ask about a situation in which a hospital district, not the
county, provides the medical setvices.
The Honorable Cindy Maria Gamer - Page 3            (DM-4 13 )
The Honorable Joey L. Boswell




         Subarticle (d) makes clearthat the noneligible hunate is ultimately responsible for
 the cost of medical services he or she receives while the inmate is incarcerated whether
 the services are provided by a county or a hospital district. Additionally, we construe
 subarticle (d) to provide a hospital district that has rendered medical services to an imnate
 of the county jail with a right to receive payment immediately upon rendering the services.
We understand, however, that an inmate may be unable to pay the hospital district
immediately upon receiving the medical services. For example, we note that an imnate
who is not going to be released from a county jail must surrender, for safekeeping
purposes, his or her property (including money) to the officer receiving the inmate into the
jail, see 37 T.AC. 5 265.10, and thus may not have sufficient funds on his or her person
when the hospital district renders the medical services. We thus consider which entity, the
county or the hospital district, must, until the inmate pays for the medical services, carry
the cost of the medical services if the inmate is unable to pay the hospital district at the
time the services are rendered.3

         Article 104.002(a) of the Code of Criminal Procedure deems the county of
incarceration liable for all expenses it incurs in the safekeeping of prisoners contined in the
county jail or that the county is keeping under guard, unless article 104.002 provides
Otherwise.On the other hand, we are unaware of any provision that deems a hospital
district liable for the costs of providing medical services to a noneligible inmate of tlte
county jail. This indicates that the county is responsible for carrying the cost of the
medical services until it collects reimbursement from the inmate. We believe the
legislative history of article 104.002 of the Code of Criminal Procedure lends guther
support to this assertion.

         Prior to its amendment in 1987, article 104.002 of the Code of Criminal Procedure
required a county to pay all of a county jail inmate’s medical expenses, regardless of the
inmate’s abiity to pay for the services. See Hearings on H.B. 2308 Before the House
Comm. on County A&its, 70th Leg., RS. (Apr. 7, 1987) (statement of Representative
Stiles, author) (tape available from House Video/Audio Services Office). In 1987 the
legislature amended article 104.002 by adding subarticle (d), which, except for the
recurring references to “‘hospital district,” reads substantially as it does now. See Act of
May 26, 1987, 70th Leg., R.S., ch. 1010, 8 1, 1987 Tex. Gen. Laws 3412, 3412-13; see
also Act of May 26, 1991, 72d Leg., RS., ch. 434, $ 1, 1991 Tex. Gen. Laws 1597,
1597-98. The purpose of the 1987 amendment was not only to require an inmate in a
county jail to pay for medical and dental services that he or she receives while
incarcerated, but also to authorize the county to bring a civil action to recover costs it
expends on a particular inmate. See House Comm. on County AlEsirs, Bill Analysis, H.B.
2308,7Oth Leg., R.S. (1987).



        XknemUy,howeva, s hospital mustprovideemergencyservicesto an inmate who requiresthem
regardless of the inmate’s ability tc pay. See Health & Safeq Code $311.022(a); see a.& id.
5 241.003(4) (defining ‘general hospital”).
TheHonorableCmdy MariaGsmer               - Page 4         (DM-413)
The Honorable Joey L. Boswell




         A representative of the Sheriffs’ Association of Texas, which drafkd the 1987
amendment, testified before the House Committee on County A%Xrs that House Bii 2308
provided, through various methods, for reimbursement of the medical costs that counties
pay for county jail inmates. See Hearings on H.B. 2308 Before the House Comm. on
County Affairs, 70th Leg., RS. (Apr. 7. 1987) (statement of Dan Smith, Bell County
sheriff) (tape available from House Video/Audio Services Office). Fit, an inmate who
has sufficient finds deposited with the sheritT, upon requesting medical attention, must
sign an agreement that the costs of the medical services be subtracted &om his or her
inmate account. See id. Second, an inmate who is eligible for assistance under chapter 6 1
of the Health and Safety Code must sign a statement of indigency, and the county must
assist the inmate to apply for indigents’ health care fimds that are available. See id.

         As noted above, in 1991 the legislature amended subarticle (d) by, smong other
things, adding the repeated references to “hospital district.” See Act of May 26, 1991,
72d Leg., RS., ch. 434, 5 1, 1991 Tex. Gen. Laws 1597, 1597-98. A witness who
testified before the Senate Subcommittee on Health Services indicated that the revisions
were necessary to authorize the county or hospital district in which the inmate is
incarcerated to recover from the county or hospital district in whi?h the inmate resides.
Hearings on S.B. 1336 Before the Senate Subcomm. on Health Services, 72d Leg., RS.
(Apr. 29, 1991) (testimony of Jim Allison, County Judges and Commissioners Assoc.)
(tape available 6om Senate Staff Services).

         In our opinion, the legislature intended the 1991 amendment to reflect the fact
that, under the Indigent Health Care and Treatment Act, Health & Safety Code ch. 61,
either a county or a hospital district may be responsible for an eligible inmate’s medical
care, dependent upon the location of the inmate’s residence. The amendment thus
authorizes the provider of such medical services, whether a county or a hospital district, to
recover its expenses. We do not believe the legislature intended to require a hospital
district to cany the expense of providing medical services to a noneligible inmate of the
county jail until the inmate pays for the services. A hospital district has no obligation to
bear, either temporarily or permanently, the cost of medical expenses for a noneligible
inmate, regardless of whether the inmate resides in the hospital district.4 CJ Code Crim.

          4Additionally, the Eighth Amendment to the United States Coustitution requires the government
to provide medical care Yor those whom it is punishing by incarcemtion.” Esrelle v. Gamble. 429 U.S.
97, 103 (1976); see also Ramos v. Lamm, 639 F.2d 559,574 (10th Cir. 1980), cert. denied, 450 U.S. 1041
(1981) (quoting EsteNe, 429 U.S. at 103); Srour v. Slate, 612 N.E.2d 1076, 1083 (lnd. ct. ASP. 1993)
(citing Erlelle, 429 U.S. at 103). The county, not the hospital district, is punishing the imnates. Under
the Supreme Court’s rationale in Eslelle, the county should therefore be required to provide medical care
for its inmates.

        Moreover, the duty to provide medical care may include the duty to pay for the services. See
Monmou~h County Correctional Inst. Inmates v. Lunzotq 643 F. Supp. 1217, 1226-27 (D.N.J. 1986),
afd in part, modjied in part on other grounds, 834 F.2d 326 (3d Cir. 1987). cert. denied, 486 U.S. 1006
(1988). In Monmourh County Correctional Insrihtrion fnmo~es the court found that a county jail had a
duty to pay for its inmates’ necessary medical care bxause the inmates’ financial dependency results from
their incarceration. Id. at 1227.
TheHonorable Cindy MariaGamer                - Page 5         (DM-413)
The Honorable J0ey.L. BosweU




Proc. art. 104.002(a). Furthermore, ifan inmate has surrendered his or her property to the
county jail, see 37 T.A.C. 5 265.10, the county, not the hospital district, has access to the
property and may be reimbursed from the property. See Hearings on H.B. 2308 Before
the House Comm. on County Affairs, 70th Leg., RS. (Apr. 7, 1987) (statement of Dan
Smith, BeU County sheriff) (tape available from House Video/Audio Services 050~).

         In conclusion, we construe article 104.002 of the Code of CriminaJ Procedure
ultimately to obligate a noneligible inmate to pay the costs of medical services the inmate
receives while incarcerated. Jn the event the noneligible inmate is unable to pay a hospital
district at the time the inmate receives such services from the hospital district, the county
of incarceration must pay, at the time of rendering, the hospital districts Jn the situation
Mr. BosweU presents, therefore, X is ultimately liable for the costs of the medical services
X receives from the Brownwood Regional Medical Center.6 Jf X is unable to pay for the
services at the time X receives them, Comanche County, the county of incarceration, must
pay the Brownwood Regional Medical Center. Of course, article 104.002(d) authorizes
the county to seek reimbursement from the inmate or from another source.




         ‘We do not here consider whether a hospital district may bill a noneligible inmate who is unable
topaythehospitaldistridatthetimethcsenicesarerendered.

         6We assume that X is in fad a noneligible inmate. IfX is eligible for assistance under chapter 61
of the Health and safety Code, either the county of resident or the hospital district of residence is liable.
insccordanawithchapter61,forthecostofmedicalservicesXreceivesduringhisorherincarceration
See generally Attorney General Opinion DM-225 (1993); supro note 2 (citing Attorney General Opinion
DM-225).
The Honorable Cindy Maria Garner - Page 6         ( D M- 4 I 3 )
The Honorable Joey L. Boswell




                                   SUMMARY

               Under article 104.002(d) of the Code of Criminal Procedure, a
          hospital district is entitled, at the time it renders medical services to
          an inmate of the county jail who is not eligible for assistance under
          chapter 61 of the Health and Safety Code, to payment from the
          inmate. The noneligible inmate is ultimately liable for the wsts of
          medical services he or she receives while incarcerated. If the inmate
          is unable to pay the hospital district at the time he or she receives
          medical services from the hospital district, the county of in-
          carceration must pay for the services. Section 104.002(d) authorizes
          the county to seek reimbursement from the inmate or from another
          source, however.




                                                       DAN     MORALES
                                                       Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney General
