### THE ATTORNEY GENERAL OF TEXAS

Honorable Robert T.Jarvis Opinion No. JM-1041 Grayson County Attorney Justice Center Re: Costs for medical exaSherman, Texas 75090 minations of rape victims under article 4447m, V.T.C.S. (RQ-1661)

DearMr. Jarvis:

you ask about theproper construction of article 4447m, V.T.C.S., which governs thepayment of the cost of medical examinations ofvictims of sexual assault. Article 4447m, V.T.C.S., provides:

Section 1. Any law enforcement agency that requests a medical examination of a victim of an alleged sexual assault for use inthe investigation or prosecution of the offense shall pay all costs of the examination.

Sec. 2. This actdoes not require a law enforcement agency to pay any costs of treatment for injuries.

you first ask about the proper construction of the phrase "all costs of the examination.B' In your letter requesting an opinion you state:

It is my opinion that 'all costs of the examination' is interpreted to include emergency room fee, physician or nurse examiner fee, evidence collection kit cost, x-rays, diagnostic test (pregnancy, toxicology ifsurvivor was involuntarily drugged, VDRL, chlamydia for children under 12 years of age). Thiswould not include testing for HIV orany treatment or admission costs.
Article 4447m,V.T.C.S., has never been construed by any court orattorney general opinion. The statute was

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first enacted in 1973,Acts 1973, 63d Leg., ch. 299, at 704 [hereinafter H.B. 8571, and amended in 1983. Acts 1983, 68th Leg., ch. 977, § 11, at 5321 [hereinafter H.B. 20081. The bill analysis for H.B. 857 prepared for the House Committee on Criminal Jurisprudence contains the following "Background Information":

Presently many rape victims are required to pay for medical examinations made in connection with investigation or prosecution of the offense. It is felt that this cost should beborn [sic] by the law enforcement agency involved.

BillAnalysis, Tex. H.B. 857, 63d Leg. (1973).

The bill analysis sets forth the purpose of thebill:

To require lawenforcement agencies topay the costs ofanymedical examination made in connection with the investigation orprosecution of an alleged rape.

The Wection by Section Analysis" of thebill analysis sets forth the following:

Section 1. Provides that a law enforcement agency which requests amedical examination of avictim of an alleged rape for use in investigation or prosecution of the offense shall pay for the examination.

Section 2. Provides that the lawenforcement agency is not required to pay for the treatment of injuries.

Id.

The 1983 amendment to article 4447m, V.T.C.S., was part of an omnibus bill designed to classify thr offenses of rape and sexual abuse of adults and children as "sexual assault" and to remove such offenses from the Penal Code chapter on Sexual Offenses. Tex. H.B. 2008. The %ection by Section Analysis" of the bill analysis indicates that the amendment to article 4447mwas designed to "make conforming changes";

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thus, the amendment replaced theword 1°rape18 with thephrase "sexual assault.t' Id.

There is then no indication in the legislative histories of article 4447m,V.T.C.S., and itsamendment that the **legislature** intended with itsuse of thephrase "medical examination" that any specific included or excluded. medical procedures be Inconstruing civil statutes, we are required to attempt to ascertain legislative intent and consider the **old** law, the evil tobe addressed, and the proposed remedy. Gov't Code 5 312.005. Because the facts involved inany alleged episode of sexual assault will from instance to instance, we construe vary "medical examination" to include any recognized medical procedure whose performance reasonably would be expected toproduce evidence that would tend to support or refute allegations of sexual assault inany specific episode. A determination regarding the suitability or necessity of any particular medical examination procedure in any instance of alleged sexual assault isa matter of fact, the initial determination of which must lie with the law enforcement agency making the request for **a**medical examination.

We understand you to asknextwhether the investigating lawenforcement agency isresponsible forall costs of the examination, even in an instance in which no agency peace officer requests the initial medical examination. We answer your question inthe affirmative. The act neither requires
norpresupposes that apeace officer requests the medical examination: the act by itsvery terms requires only that any law enforcement agency that requests amedical examination of avictim of analleged sexual assault that isto be used inthe investigation orprosecution of the offense all costs of the examination. pay The actby its terms does not permit or require that the investigating law enforcement agency pay the cost of any medical examination that it itself does not request. Finally, you **ask** about theproper construction of the phrase "investigating lawenforcement agency." We understand you to askwhether thephrase includes only a city police department or a county sheriff's office in whose jurisdiction the alleged incident occurred or whether it

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includes the local district or criminal district attorney's office whose responsibility it istoprosecute the case.1

The statute itself does not define "investigating law enforcement agency," nordoes Texas law contain adefinition of "investigating law enforcement agency" that generally would be applicable. Courts have construed the phrase "law enforcement agency" to include various state and local officers and employees, depending upon the intention of the legislature at the time.

For example, apenitentiary, a county department of corrections, a state agency denominated the Division of Alcoholic Beverage Control that oversaw the state's regulation of alcoholic beverages, acoroner's office, aswell as police, prosecutors and even the courts and agrand jury, have been declared *'lawenforcement agencies" for certain purposes. See, e.ac, puffin v. Carlson, 636 F.2d 709 (D.C. Cir. 1980); P ovlev. Scott,

(prison: 583 P.2d 939 (Cola.Ct. APP. 1978) or penitentiaries as law enforcement agencies); Heltzel Thma 516N.E.2d 103 (Ind.Ct. 1988) (coronor~s ofTice is YAWenforcement agency) APP. :Criminal Injuries Comoensation Bd. v. Gould 331A.2d 55 (Md. Ct. APP- 1975) (police,prosecutors, ckrt, andgrand jury are lawenforcement agencies forcertain purposes): Matter of C. Schmidt &Sons, Inc., 399A.2d 637 (N.J. 1979) (Division of Alcoholic Beverage Control, astate agency, as a law enforcement agency).

On the other hand, a federal agency denominated the Department of Income Maintenance that oversaw federal administration of state investigations ofmedicaid fraud, a state racing commission, and even a city police department, have been held & tobe law enforcement agencies for

1. We note that in your letter requesting an opinion you suggest that article 4447m, V.T.C.S., has been construed to require, in some instances, thevictim ofalleged sexual assault topay the costs of any relevant medical examination. No reasonable reading of article 4447m, V.T.C.S., admits of such a construction; the act is clear that any investigating lawenforcement agency that requests amedical examination of avictim of alleged sexual assault inconnectionwith the investigation orprosecution of such assault must pay the costs of such amedical examination.

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specific purposes under the particular statutes involved. Mah rv. Freedom of Information Comm'n 198:) 472A.2d 321 (Conn.

(Department of Income MainteAance is not a law enforcement agency): Maietta **V.** w Jersev Racina Comm'n, 459A.2d 295 C.N.J. 1983).

Wemay not construe statutes in such a way as to ascribe to the legislature an intention to do anunjust or unreasonable thing if it is reasonably susceptible of a construction that will not accomplish such a result, Anderson v. Penix, 161 S.W.2d 455 (Tex.1942), or that shows the legislature's intention to have been otherwise. State Hiahwav DeD'tv. Gorham, 162 S.W.2d 934 (Tex. 1942). We conclude that the construction ofthe phrase "investigating lawenforcement agency" that best comports with the evident legislative intent is one that would require the investigating agency that requests such an examination, whether that be a city police department, a county sheriff's department, or a local prosecutor's office inanyparticular instance topay foranynecessary medical examination.

SUMMARY
Article 4447m, V.T.C.S., requires investigating law enforcement agency thzi requests a medical examination that is necessary forthe investigation or prosecution of an alleged episode of sexual assault topay forthe costs of such an examination. The phrase "medical examination" includes any recognized medical procedure whose performance reasonably would be expected toproduce evidence thatwould tend to support or refute allegations of sexual assault inany specific episode. A determination of the suitability
ornecessity ofaparticular medical examination procedure in any instance of alleged sexual assault is a matter of fact, the initial determination ofwhich must lie with the investigating law enforcement agency making the request foramedical examination. The actdoes not require that apeace officer request amedical examination: the act only requires the investigating law enforcement agency topay forthe cost of such a medical examination when that agency requests that such anexamination be conducted. The phrase "law enforcement agency" includes a city

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police department, acounty sheriff's office,
or a local prosecutor's office.

Attorney General of Texas

MARYKELLRR **First** Assistant Attorney General

LouMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLKY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by JimMoellinger Assistant Attorney General

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