Untitled Texas Attorney General Opinion

THE ATTORNEY GENERAL
OF TEXAS
Honorable Robert T. Jarvis Opinion No. JM-1041
Grayson County Attorney
Justice Center Re: Costs for medical exa-
Sherman, Texas 75090 minations of rape victims
under article 4447m, V.T.C.S.
(RQ-1661)
Dear Mr. Jarvis:
you ask about the proper construction of article 4447m,
V.T.C.S., which governs the payment of the cost of medical
examinations of victims 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
in the investigation or prosecution of the
offense shall pay all costs of the examina-
tion.
Sec. 2. This act does 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, toxi-
cology if survivor was involuntarily drugged,
VDRL, chlamydia for children under 12 years
of age). This would not include testing for
HIV or any treatment or admission costs.
Article 4447m, V.T.C.S., has never been construed by
any court or attorney general opinion. The statute was
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Honorable Robert T. Jarvis - Page 2 (JM-1041)
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 be born [sic] by the law enforcement
agency involved.
Bill Analysis, Tex. H.B. 857, 63d Leg. (1973).
The bill analysis sets forth the purpose of the bill:
To require law enforcement agencies to pay
the costs of any medical examination made in
connection with the investigation or prosecu-
tion of an alleged rape.
The Wection by Section Analysis" of the bill analysis
sets forth the following:
Section 1. Provides that a law enforce-
ment agency which requests a medical examina-
tion of a victim of an alleged rape for use
in investigation or prosecution of the
offense shall pay for the examination.
Section 2. Provides that the law enforce-
ment 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 4447m was designed to "make conforming changes";
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Honorable Robert T. Jarvis - Page 3 (JM-1041)
thus, the amendment replaced the word 1°rape18
with the phrase
"sexual assault.t' Id.
There is then no indication in the legislative his-
tories of article 4447m, V.T.C.S., and its amendment that
the legislature intended with its use of the phrase "medical
examination" that any specific medical procedures be
included or excluded. In construing civil statutes, we are
required to attempt to ascertain legislative intent and
consider the old law, the evil to be addressed, and the
proposed remedy. Gov't Code 5 312.005. Because the facts
involved in any alleged episode of sexual assault will vary
from instance to instance, we construe "medical examination"
to include any recognized medical procedure whose perfor-
mance reasonably would be expected to produce evidence that
would tend to support or refute allegations of sexual
assault in any specific episode. A determination regarding
the suitability or necessity of any particular medical
examination procedure in any instance of alleged sexual
assault is a 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 ask next whether the investigating
law enforcement agency is responsible for all costs of the
examination, even in an instance in which no agency peace
officer requests the initial medical examination. We answer
your question in the affirmative. The act neither requires
nor presupposes that a peace officer requests the medical
examination: the act by its very terms requires only that
any law enforcement agency that requests a medical examina-
tion of a victim of an alleged sexual assault that is to be
used in the investigation or prosecution of the offense pay
all costs of the examination. The act by 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 the proper construction of the
phrase "investigating law enforcement agency." We under-
stand you to ask whether the phrase 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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Honorable Robert T. Jarvis - Page 4 (JM-1041)
includes the local district or criminal district attorney's
office whose responsibility it is to prosecute the case.1
The statute itself does not define "investigating law
enforcement agency," nor does Texas law contain a definition
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, a penitentiary, a county department of
corrections, a state agency denominated the Division of
Alcoholic Beverage Control that oversaw the state's regula-
tion of alcoholic beverages, a coroner's office, as well as
police, prosecutors and even the courts and a grand jury,
have been declared *'law enforcement agencies" for certain
purposes. See, e.ac, puffin v. Carlson, 636 F.2d 709 (D.C.
Cir. 1980); P ovle v. Scott, 583 P.2d 939 (Cola. Ct. APP.
1978) (prison: or penitentiaries as law enforcement
agencies); Heltzel Th ma 516 N.E.2d 103 (Ind. Ct. APP.
1988) (coronor~s ofTice is YAW enforcement agency) : Criminal
Injuries Comoensation Bd. v. Gould 331 A.2d 55 (Md. Ct.
APP- 1975) (police, prosecutors, ckrt, and grand jury are
law enforcement agencies for certain purposes): Matter of C.
Schmidt & Sons, Inc., 399 A.2d 637 (N.J. 1979) (Division of
Alcoholic Beverage Control, a state agency, as a law en-
forcement agency).
On the other hand, a federal agency denominated the
Department of Income Maintenance that oversaw federal
administration of state investigations of medicaid fraud, a
state racing commission, and even a city police department,
have been held & to be 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, the victim of alleged sexual
assault to pay the costs of any relevant medical examina-
tion. No reasonable reading of article 4447m, V.T.C.S.,
admits of such a construction; the act is clear that any
investigating law enforcement agency that requests a medical
examination of a victim of alleged sexual assault in connec-
tion with the investigation or prosecution of such assault
must pay the costs of such a medical examination.
p. 5405
Honorable Robert T. Jarvis - Page 5 (JM-1041)
specific purposes under the particular statutes involved.
Mah r v. Freedom of Information Comm'n 472 A.2d 321 (Conn.
198:) (Department of Income MainteAance is not a law
enforcement agency): Maietta V. w Jersev Racina Comm'n,
459 A.2d 295 C.N.J. 1983).
We may not construe statutes in such a way as to
ascribe to the legislature an intention to do an unjust 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't v. Gorham, 162 S.W.2d 934 (Tex. 1942). We
conclude that the construction of the phrase "investigating
law enforcement 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 in any particular
instance to pay for any necessary medical examination.
SUMMARY
Article 4447m, V.T.C.S., requires
investigating law enforcement agency thzi
requests a medical examination that is
necessary for the investigation or prosecu-
tion of an alleged episode of sexual assault
to pay for the costs of such an examination.
The phrase "medical examination" includes any
recognized medical procedure whose perfor-
mance reasonably would be expected to produce
evidence that would tend to support or refute
allegations of sexual assault in any specific
episode. A determination of the suitability
or necessity of a particular medical examina-
tion procedure in any instance of alleged
sexual assault is a matter of fact, the
initial determination of which must lie with
the investigating law enforcement agency
making the request for a medical examination.
The act does not require that a peace officer
request a medical examination: the act only
requires the investigating law enforcement
agency to pay for the cost of such a medical
examination when that agency requests that
such an examination be conducted. The phrase
"law enforcement agency" includes a city
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Honorable Robert T. Jarvis - Page 6 (JM-1041)
police department, a county sheriff's office,
or a local prosecutor's office.
Attorney General of Texas
MARYKELLRR
First Assistant Attorney General
Lou MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jim Moellinger
Assistant Attorney General
P- 5407