WILL WI&SON 

ATToRNEYC3ENERAL 

AUSTIN aa. - 

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 payment of expenses Incurred 

In the phychiatric examlnatlon of.an Indigent prisoner 

charged wlth a felony, .for 

Dear Mr. Rudeloff: the purposes.stated. 

,~ 

You have requested an oplnion~from tkiis,office upon 

the following, questions: 

"(1.) Hay the Co~ssloners Court of Bfie 

County authorize the payment of expenses to be 

incurred In the phychlatrlc examination of an 

indigent prisoner charged with a ,felouy to determine whether.or not such prisoner was sane 

at the time of the commlsslon of the alleged 

offense and whether Oti not 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 examinations of an indigent 

prisoner charged with a felony to determine 

whether or not such prisoner was sane at the 

time of the commlsslon of the alleged offense 

and whether or not he Is sane at this time?" 

In regard to the above-quoted questions you have set 

forth the following facts: 

II The attorney for the defendant has 

flled'a'm&ion:.wlth the court, along with a supporting affidavit of a local physician, raising 

the issue of Insanity. Such motion requested an 

order that the defendant be submitted to a prlvate 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 examination is $' 500.00. - 

"The 36th Judicial District Court of Bee 

County, the court In which such Indictment Is 

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 purpose of making such mental examination." 

In a later letter you have also set forth certain addl- 

.tlonal facts to the effect that: 

%ri November 24th the Mstrlct Judge ln 

: whose court ~such prisoner's case Is pending IS: 

:sued an order whereby he found,that the patient 

Is 'mentally disturbed and vlol'ent.~ and that 

there is no adequate ,faclllty for safekeeping 

hlm in jail In Bee County. The Court ordered 

the prisoner to be transferred to the Bexar 

County jail until further ordered~by the Court:" 

Article 1037,.Vernoncs Code of Crlmlnal Procedure, 

provides that: 

"Each county shall be liable for all expense lncurred'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." 

Article 1040, Vernonrs Code of 

proirldes In part that: 

"For the safe keeping, support andmalntenance of prisoners confined In jail or under 

~~~~ssherlff shall be allowed the follow- 

: 

I, 

. . . 

Crlmlnal Procedure, 
Honorable Richard E. Rudeloff, page 3. (ww-1509) 

"3. For necessary medical bill and reasonable extra compensation for attention to a 

prisoner during sickness, such an amount as the 

.commissloners court 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 Constitution of Texas, Art. 1, Sec. 

15-a, Vernon's An&St., relates to the commltment of one found to be Insane. It does not 

relate to insanity as a bar to prosecution or 

as a defense In a criminal case. A defendant 

In a criminal case may successfully plead lnsanity as a bak to prosecutionor punishment, 

-or as 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 psychlzitrlst for one charged'wlth a arim? or 

order that he be sent to a hospital for observatlon. 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 adjudication of 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 professional brief and oral 

argument, appellant urges that we were In error 

In our original holding that he was .not under 

the Constitution of the United States entitled 

to the appointment of a psychiatrist, to be compensated 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 

constitutional rights, 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,to extend 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 

constitutional mandate.*" 

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 reasonable medical 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 

‘is a matter to be determined by the Comm%ssloners 

up. (Emphaels added) 

Attorney Ceneralls Opinion No. R-2474 (1951) further 

states that: 

Of course, it 5.8 for the Comm%ssloners C&t'to determine the reasonableness of 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 

951) T#i 

'al's Opinion ~-2474 

I;f chaik~ %h"the responslblllty,~by statute, of determMng 

e opinion that the Commissioners' Court. 

the necklty and reasonableness of 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 examination to 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 responslblllty'of passing upon the necessity and reaeonableness of, 

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 Commlsslonersl Court. 

SUMMARY 

The Commlsslonersl Court has the reaponslblllty 

of determining the necessity and reasonableness of 

medical care and treatment rendered prisoners confined In jail or under guard pursuant to Articles 

1037 and 10&I, Vernon's Code of Criminal Procedure. 

The Cornmissloners~ Court may authorize the payment of expenses to be incurred In the psychlatrio examination and treatment of an Indigent 

prlaoner If sald Court determines that such examination and treatment Is necessary to protect 

and preserve the health and well-being of the 

prisoner, but this would not include medical or 

psychiatric examination merely 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:! 

PB:wb:zt 

APPROVED: 

OPINION COMMITPEE 

W. V. tippert, Chalrman 

Sola Wilcox 

Vernon Teofan 

Pat Bslley 

Assistant 

REKBi@DFORTEEATTO~GFNERAL 

BY: Leonard Passmore