Who pays for a sexual assault victim's forensic medical exam in Texas, and can the victim be billed?

Texas AG Opinion JM-1041: Who Pays for a Sexual Assault Victim's Medical Exam?

Plain-English summary

After a sexual assault, evidence is often collected through a medical examination (a rape kit, lab tests, and the like). Someone has to pay for that, and Texas answered the question decades ago with a short statute, article 4447m. The Grayson County Attorney asked the Attorney General to iron out three wrinkles in how it works.

The core rule is simple: a law enforcement agency that requests a victim's medical examination for use in investigating or prosecuting the offense has to pay all the costs of that examination. The statute is equally clear that it does not make the agency pay for treating the victim's injuries, which is a separate thing.

The first question was what "all costs of the examination" actually includes. The county attorney had offered a list (emergency room fee, examiner fee, evidence kit, x-rays, certain diagnostic tests) while excluding HIV testing and treatment. The Attorney General declined to freeze a fixed shopping list into the statute. The legislative history did not say specific procedures were in or out, so the AG read "medical examination" to cover any recognized medical procedure that could reasonably be expected to produce evidence tending to prove or disprove the assault. Because facts differ case to case, whether a particular procedure is suitable or necessary is a question of fact, and the agency that requests the exam makes that initial judgment.

The second question was whether the investigating agency owes the costs even when no peace officer personally asked for the exam. The Attorney General said yes, the statute keys off the request, not off who inside the agency made it: if the agency requested the exam for the investigation or prosecution, it pays. The flip side is that an agency is not required to pay for an exam it did not request.

The third question was what "investigating law enforcement agency" means, and specifically whether it reaches the prosecutor's office as well as the police. There is no fixed Texas definition, and courts elsewhere have read "law enforcement agency" broadly (prisons, coroners, prosecutors, even grand juries) or narrowly, depending on the statute. Reading article 4447m to best fit its evident purpose, and applying the rule that statutes should not be read to produce an unjust or unreasonable result, the Attorney General concluded the phrase includes a city police department, a county sheriff's office, or a local prosecutor's office, whichever one requested the examination in a given case. A footnote closed off the possibility, floated in the request, that the victim could ever be made to pay: no reasonable reading of the statute allows that.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The law on paying for sexual assault forensic examinations has changed substantially since 1989. Former article 4447m was recodified, and Texas later moved much of this subject into the Code of Criminal Procedure and the Government Code, with the state assuming a larger role in paying for evidence-collection exams and stronger protections against billing victims. Anyone dealing with a present-day question about who pays for a forensic medical exam should consult the current statutes rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

Police, sheriffs, and prosecutors: The opinion told them the agency that requested a victim's exam for the investigation or prosecution had to pay all its costs, and that "agency" could mean a police department, a sheriff's office, or a prosecutor's office.

Sexual assault victims: The opinion confirmed that a victim could not be billed for a requested forensic examination, closing off any reading that shifted the cost to the victim.

Hospitals and examiners: The opinion pointed them to the requesting agency for payment of examination costs, while leaving treatment of injuries as a separate matter the statute did not cover.

Common questions

Who pays for a sexual assault victim's forensic medical exam in Texas?
The requesting agency. The AG concluded article 4447m requires the investigating law enforcement agency that requests the exam for the investigation or prosecution to pay all costs of the examination.

Can the victim be billed for the exam?
No. The AG concluded no reasonable reading of article 4447m makes the victim pay; the act clearly puts the cost on the requesting agency.

Does "law enforcement agency" include the district attorney's office?
Yes. The AG concluded the phrase includes a city police department, a county sheriff's office, or a local prosecutor's office, whichever requested the examination.

Does the agency have to pay for treating the victim's injuries?
No. The AG noted the statute expressly does not require a law enforcement agency to pay any costs of treatment for injuries, only the costs of the examination.

Background and statutory framework

The request from the Grayson County Attorney concerned article 4447m, V.T.C.S., which provides in section 1 that 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 examination, and in section 2 that the act does not require the agency to pay costs of treatment for injuries. The statute had never been construed by any court or attorney general opinion. It was first enacted in 1973 (Acts 1973, 63d Leg., ch. 299, at 704, H.B. 857) and amended in 1983 (Acts 1983, 68th Leg., ch. 977, § 11, at 5321, H.B. 2008); the 1983 change was part of an omnibus bill that reclassified rape and sexual abuse offenses as "sexual assault," and it made conforming changes, replacing "rape" with "sexual assault."

On the meaning of "all costs of the examination," the AG found no indication in the legislative histories that the Legislature intended specific medical procedures to be included or excluded. Construing the statute under Gov't Code section 312.005, which directs attention to the old law, the evil addressed, and the proposed remedy, and recognizing that the facts of each episode vary, the AG construed "medical examination" to include any recognized medical procedure whose performance reasonably would be expected to produce evidence tending to support or refute allegations of sexual assault in a specific episode. Whether a particular procedure is suitable or necessary is a matter of fact, the initial determination of which lies with the law enforcement agency requesting the examination.

On whether the agency is responsible even when no peace officer requests the exam, the AG answered yes. The act neither requires nor presupposes that a peace officer make the request; by its terms it requires only that any law enforcement agency that requests an examination to be used in the investigation or prosecution pay all costs, and it does not require an agency to pay for an examination it did not itself request.

On the meaning of "investigating law enforcement agency," the AG noted that neither the statute nor Texas law generally defines the phrase, and that courts have construed "law enforcement agency" to include various officers and employees depending on legislative intent. The AG surveyed decisions on both sides: entities held to be law enforcement agencies for certain purposes included prisons or penitentiaries (Duffin v. Carlson, 636 F.2d 709 (D.C. Cir. 1980); People v. Scott, 583 P.2d 939 (Colo. Ct. App. 1978)), a coroner's office (Heltzel v. Thomas, 516 N.E.2d 103 (Ind. Ct. App. 1988)), police, prosecutors, courts, and a grand jury (Criminal Injuries Compensation Bd. v. Gould, 331 A.2d 55 (Md. Ct. App. 1975)), and a state Division of Alcoholic Beverage Control (Matter of C. Schmidt & Sons, Inc., 399 A.2d 637 (N.J. 1979)); entities held not to be law enforcement agencies for particular purposes included a Department of Income Maintenance (Maher v. Freedom of Information Comm'n, 472 A.2d 321 (Conn. 1984)) and a state racing commission (Maietta v. New Jersey Racing Comm'n, 459 A.2d 295 (N.J. 1983)). Applying the principle that a statute should not be read to ascribe to the Legislature an intent to do an unjust or unreasonable thing if it is reasonably susceptible of a construction that avoids that result (Anderson v. Penix, 161 S.W.2d 455 (Tex. 1942); State Highway Dep't v. Gorham, 162 S.W.2d 934 (Tex. 1942)), the AG concluded the construction best comporting with the legislative intent requires the investigating agency that requests the examination, whether a city police department, a county sheriff's department, or a local prosecutor's office, to pay for any necessary examination.

Citations

Cases:

• Duffin v. Carlson, 636 F.2d 709 (D.C. Cir. 1980) (penitentiary as a law enforcement agency)
• People v. Scott, 583 P.2d 939 (Colo. Ct. App. 1978) (prison as a law enforcement agency)
• Heltzel v. Thomas, 516 N.E.2d 103 (Ind. Ct. App. 1988) (coroner's office as a law enforcement agency)
• Criminal Injuries Compensation Bd. v. Gould, 331 A.2d 55 (Md. Ct. App. 1975) (police, prosecutors, courts, grand jury as law enforcement agencies for certain purposes)
• Matter of C. Schmidt & Sons, Inc., 399 A.2d 637 (N.J. 1979) (state Division of Alcoholic Beverage Control as a law enforcement agency)
• Maher v. Freedom of Information Comm'n, 472 A.2d 321 (Conn. 1984) (Department of Income Maintenance not a law enforcement agency)
• Maietta v. New Jersey Racing Comm'n, 459 A.2d 295 (N.J. 1983) (racing commission not a law enforcement agency)
• Anderson v. Penix, 161 S.W.2d 455 (Tex. 1942) (statutes not read to reach an unjust or unreasonable result)
• State Highway Dep't v. Gorham, 162 S.W.2d 934 (Tex. 1942) (same)

Statutory authority:

• V.T.C.S. art. 4447m (Acts 1973, 63d Leg., ch. 299, at 704; amended Acts 1983, 68th Leg., ch. 977, § 11, at 5321) (agency pays exam costs; no duty to pay for treatment of injuries)
• Gov't Code § 312.005 (ascertaining legislative intent)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1041
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1041.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; garbled case names have been corrected against the cited reporters; the linked PDF is authoritative.

THE ATTORNEY GENERAL OF TEXAS

April 19, 1989

Honorable Robert T. Jarvis
Grayson County Attorney
Justice Center
Sherman, Texas 75090

Opinion No. JM-1041

Re: Costs for medical examinations 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 examination.

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." 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 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 first enacted in 1973, Acts 1973, 63d Leg., ch. 299, at 704 [hereinafter H.B. 857], and amended in 1983, Acts 1983, 68th Leg., ch. 977, § 11, at 5321 [hereinafter H.B. 2008]. 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 prosecution of an alleged rape.

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

Section 1. Provides that a law enforcement agency which requests a medical examination 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 enforcement 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 the 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 "Section by Section Analysis" of the bill analysis indicates that the amendment to article 4447m was designed to "make conforming changes"; thus, the amendment replaced the word "rape" with the phrase "sexual assault." Id.

There is then no indication in the legislative histories 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 § 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 performance 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 examination 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 understand 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 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 regulation 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.g., Duffin v. Carlson, 636 F.2d 709 (D.C. Cir. 1980); People v. Scott, 583 P.2d 939 (Colo. Ct. App. 1978) (prisons or penitentiaries as law enforcement agencies); Heltzel v. Thomas, 516 N.E.2d 103 (Ind. Ct. App. 1988) (coroner's office is law enforcement agency); Criminal Injuries Compensation Bd. v. Gould, 331 A.2d 55 (Md. Ct. App. 1975) (police, prosecutors, court, 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 enforcement 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 not to be law enforcement agencies for specific purposes under the particular statutes involved. Maher v. Freedom of Information Comm'n, 472 A.2d 321 (Conn. 1984) (Department of Income Maintenance is not a law enforcement agency); Maietta v. New Jersey Racing Comm'n, 459 A.2d 295 (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 Highway Dep'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 an investigating law enforcement agency that requests a medical examination that is necessary for the investigation or prosecution 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 performance 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 examination 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 police department, a county sheriff's office, or a local prosecutor's office.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jim Moellinger
Assistant Attorney General

Footnotes

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 examination. 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 connection with the investigation or prosecution of such assault must pay the costs of such a medical examination.