Who pays for a Texas jail inmate's medical care if the inmate isn't indigent: the county or the hospital district?

Plain-English summary

When someone sits in a county jail and needs a doctor, who pays the bill? A Texas district attorney and a county auditor brought the Attorney General a version of that question with a twist: what happens when the inmate is not "indigent," meaning not eligible for help under the state's indigent health care program (chapter 61 of the Health and Safety Code), and when the treatment is provided by a hospital district rather than the county itself? In one of the situations described, an inmate in the Comanche County Jail was taken to a regional medical center in a neighboring county for emergency treatment, with no determination of whether the inmate was indigent.

The Attorney General resolved it under Code of Criminal Procedure article 104.002(d). The bottom-line rule: the inmate is the one ultimately responsible for the cost of medical care received while incarcerated, whether the care comes from a county or a hospital district. A hospital district that treats a jail inmate is entitled to be paid when it renders the service. The complication is timing. An inmate often cannot pay on the spot, partly because an inmate who is staying in jail must hand over personal property and money for safekeeping. So someone has to carry the cost until the inmate pays.

The office concluded that the entity that carries the cost in the meantime is the county of incarceration, not the hospital district. Article 104.002(a) makes the county liable for the expenses of safekeeping its prisoners unless the statute says otherwise, and nothing in the law makes a hospital district responsible for a noneligible inmate's bills. The legislative history of the 1987 and 1991 amendments pointed the same way: the reforms were built around counties paying and then recovering, with mechanisms like deducting costs from an inmate's jail account and pursuing reimbursement. So if the inmate cannot pay the hospital district when the service is rendered, the county must pay the provider, and the county can then seek reimbursement from the inmate or another source. Applied to the Comanche County situation, the inmate (called X in the opinion) was ultimately liable, but if X could not pay, Comanche County had to pay the regional medical center.

Currency note

This opinion was issued in 1996. 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.

This opinion construed Code of Criminal Procedure article 104.002 and chapter 61 of the Health and Safety Code as they stood in 1996, after amendments in 1987 and 1991. Article 104.002 and the indigent health care statutes have been amended since, and the precise allocation of cost and the reimbursement mechanics may read differently today. Read this page for the office's 1996 analysis of who carried the cost, and verify the current Code of Criminal Procedure and Health and Safety Code before relying on any specific rule.

What the opinion meant at the time

For counties: The opinion meant the county of incarceration could not push the immediate cost of a noneligible inmate's medical care onto a hospital district. If the inmate could not pay the provider when the service was rendered, the county had to pay, then pursue reimbursement from the inmate or another source under article 104.002(d).

For hospital districts: The opinion meant a hospital district that treated a jail inmate was entitled to payment when it rendered the service, and was not required to carry, even temporarily, the cost of treating a noneligible inmate, regardless of whether the inmate resided in the district.

For sheriffs and jail officials: The opinion described the reimbursement tools the 1987 reform built in, including deducting medical costs from the account of an inmate who had funds on deposit, and the county's access to property the inmate surrendered for safekeeping.

For inmates: The opinion meant a jail inmate who was not eligible for indigent health care was ultimately liable for the cost of his or her own medical treatment received while incarcerated.

For lawyers: The office read article 104.002(a) and (d) together with its earlier opinion DM-225 (which addressed eligible inmates) and the legislative history of the 1987 and 1991 amendments, and noted the Eighth Amendment backdrop (Estelle v. Gamble) that the government must provide medical care to those it incarcerates.

Common questions

If a jail inmate isn't indigent, who is ultimately responsible for the medical bill?
The inmate. The office concluded that a noneligible inmate is ultimately liable for the cost of medical services received while incarcerated, whether a county or a hospital district provided the care.

Does the hospital district have to wait or eat the cost if the inmate can't pay?
No. The office construed article 104.002(d) to entitle a hospital district to payment when it renders the service. If the inmate cannot pay at that time, the county of incarceration must pay the hospital district.

Why the county and not the hospital district?
Because article 104.002(a) makes the county liable for the expenses of safekeeping its prisoners unless the statute provides otherwise, and no provision makes a hospital district responsible for a noneligible inmate's costs. The legislative history of the 1987 and 1991 amendments supported the same reading.

Can the county get its money back?
Yes. Article 104.002(d) authorizes the county to seek reimbursement from the inmate or from another source, including through a civil action and through funds or property the inmate surrendered at the jail.

What if the inmate actually is eligible under chapter 61?
Then the analysis is different. The office assumed the inmate was noneligible; if the inmate is eligible for assistance under chapter 61, either the county of residence or the hospital district of residence is liable under chapter 61 (the subject of the office's earlier opinion DM-225).

Background and statutory framework

The question turned on Code of Criminal Procedure article 104.002. Subarticle (d), as amended, requires a person who is or was a county jail prisoner and received medical, dental, or health-related services from a county or a hospital district to pay for those services when rendered, gives the provider a right of subrogation against an eligible county resident's recovery, keeps the prisoner obligated to reimburse, and authorizes recovery in a civil action. The office first resolved a versioning issue (two 1991 amendments), following its earlier opinion DM-225 that the substantive chapter 434 amendment controlled over the nonsubstantive chapter 14 codification change.

The office then read subarticle (d) to make the noneligible inmate ultimately responsible, and to give a treating hospital district a right to payment when it renders the service. Because an inmate may be unable to pay immediately, partly because an inmate staying in jail surrenders money and property for safekeeping (37 T.A.C. section 265.10), the office had to decide who carries the cost in the interim. It relied on article 104.002(a), which makes the county liable for the safekeeping expenses of its prisoners unless the statute says otherwise, and on the absence of any provision making a hospital district liable for a noneligible inmate. The legislative history of the 1987 amendment (which added subarticle (d) and the county's civil-recovery tool) and the 1991 amendment (which added the references to hospital districts to handle residence-based recovery for eligible inmates) reinforced that counties pay and then recover.

The office grounded the result partly in the Eighth Amendment, citing the United States Supreme Court's decision in Estelle v. Gamble that the government must provide medical care for those it punishes by incarceration, and the rule from the federal Monmouth County litigation that the duty to provide care can include the duty to pay, because an inmate's financial dependency flows from the incarceration. Since the county, not the hospital district, incarcerates the inmate, the county bears the interim cost. The office expressly did not decide whether a hospital district could bill a noneligible inmate directly when the inmate cannot pay at the time of service.

Citations

Constitutional, statutory, and regulatory provisions discussed:

• U.S. Const. amend. VIII (medical care for the incarcerated)
• Code of Criminal Procedure art. 104.002(a) (county liable for safekeeping expenses) and art. 104.002(d) (prisoner pays for medical services; county/hospital-district recovery)
• Health and Safety Code ch. 61 (Indigent Health Care and Treatment Act), § 61.002(4) (eligible resident), § 311.022(a) (emergency services), § 241.003(4) ("general hospital")
• 37 T.A.C. § 265.10 (safekeeping of an inmate's property)

Cases cited:

• Estelle v. Gamble, 429 U.S. 97, 103 (1976) (Eighth Amendment duty to provide inmate medical care)
• Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981)
• Stout v. State, 612 N.E.2d 1076, 1083 (Ind. Ct. App. 1993)
• Monmouth County Correctional Inst. Inmates v. Lanzaro, 643 F. Supp. 1217, 1226-27 (D.N.J. 1986), aff'd in part, modified in part on other grounds, 834 F.2d 326 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988) (duty to provide care can include duty to pay)

Attorney General opinion cited:

• DM-225 (1993) (county liability for the medical costs of eligible county-jail inmates)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0413
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0413.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 23, 1996

The Honorable Cindy Maria Garner
District Attorney
349th Judicial District
P.O. Box 1076
Crockett, Texas 75835

The Honorable Joey L. Boswell
Comanche County Auditor
Courthouse
Comanche, Texas 76442

Opinion No. DM-413

Re: Whether a county is liable for the payment of medical expenses that a county jail inmate who is not an eligible county resident under chapter 61 of the Health and Safety Code incurs (RQ-685, IDS 27238)

Dear Ms. Garner and Mr. Boswell:

Ms. Garner has requested our opinion as to whether a county is liable for the payment of medical expenses incurred by an inmate in the county jail who cannot prove he or she is indigent. By "indigent," we understand Ms. Garner to refer to an "eligible resident," as section 61.002(4) of the Health and Safety Code defines that term.[1] Ms. Garner 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 bill 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 incarcerated 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 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 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 Bill 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., R.S., 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., R.S., ch. 434, § 1, 1991 Tex. Gen. 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 a hospital district 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 recovery from 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 for reimbursement in the manner provided by Chapter 61, Health and Safety Code. A county or hospital district shall 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 services.

Subarticle (d) makes clear that the noneligible inmate 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 inmate 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 inmate 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.A.C. § 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 confined 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 the 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 further 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 ability to pay for the services. See Hearings on H.B. 2308 Before the House Comm. on County Affairs, 70th Leg., R.S. (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, § 1, 1987 Tex. Gen. Laws 3412, 3412-13; see also Act of May 26, 1991, 72d Leg., R.S., 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 Affairs, Bill Analysis, H.B. 2308, 70th Leg., R.S. (1987).

A representative of the Sheriffs' Association of Texas, which drafted the 1987 amendment, testified before the House Committee on County Affairs that House Bill 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., R.S. (Apr. 7, 1987) (statement of Dan Smith, Bell County sheriff) (tape available from House Video/Audio Services Office). First, an inmate who has sufficient funds deposited with the sheriff, upon requesting medical attention, must sign an agreement that the costs of the medical services be subtracted from his or her inmate account. See id. Second, an inmate who is eligible for assistance under chapter 61 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 funds that are available. See id.

As noted above, in 1991 the legislature amended subarticle (d) by, among other things, adding the repeated references to "hospital district." See Act of May 26, 1991, 72d Leg., R.S., ch. 434, § 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 which the inmate resides. Hearings on S.B. 1336 Before the Senate Subcomm. on Health Services, 72d Leg., R.S. (Apr. 29, 1991) (testimony of Jim Allison, County Judges and Commissioners Assoc.) (tape available from 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 carry 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] Cf. Code Crim. Proc. art. 104.002(a). Furthermore, if an inmate has surrendered his or her property to the county jail, see 37 T.A.C. § 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., R.S. (Apr. 7, 1987) (statement of Dan Smith, Bell County sheriff) (tape available from House Video/Audio Services Office).

In conclusion, we construe article 104.002 of the Code of Criminal Procedure ultimately to obligate a noneligible inmate to pay the costs of medical services the inmate receives while incarcerated. In 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 district.[5] In the situation Mr. Boswell presents, therefore, X is ultimately liable for the costs of the medical services X receives from the Brownwood Regional Medical Center.[6] If 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.

                               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 costs 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 incarceration 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

Footnotes:

[1] An "eligible resident" for purposes of chapter 61 of the Health and Safety Code is "a person who meets the income and resources requirements established by th[e] chapter or by the governmental entity, public hospital, or hospital district in whose jurisdiction the person resides." Health & Safety Code § 61.002(4).

[2] The question before us here concerns the medical costs a noneligible inmate of a county jail incurs; it therefore differs from the question before us in Attorney General Opinion DM-225. In that opinion this office considered whether a county was liable for the costs of medical services provided to eligible inmates of the county jail. Attorney General Opinion DM-225 (1993).

[3] Generally, however, a hospital must provide emergency services to an inmate who requires them regardless of the inmate's ability to pay. See Health & Safety Code § 311.022(a); see also id. § 241.003(4) (defining "general hospital").

[4] Additionally, the Eighth Amendment to the United States Constitution requires the government to provide medical care "for those whom it is punishing by incarceration." Estelle 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 Estelle, 429 U.S. at 103); Stout v. State, 612 N.E.2d 1076, 1083 (Ind. Ct. App. 1993) (citing Estelle, 429 U.S. at 103). The county, not the hospital district, is punishing the inmates. Under the Supreme Court's rationale in Estelle, 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 Monmouth County Correctional Inst. Inmates v. Lanzaro, 643 F. Supp. 1217, 1226-27 (D.N.J. 1986), aff'd in part, modified in part on other grounds, 834 F.2d 326 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988). In Monmouth County Correctional Institution Inmates the court found that a county jail had a duty to pay for its inmates' necessary medical care because the inmates' financial dependency results from their incarceration. Id. at 1227.

[5] We do not here consider whether a hospital district may bill a noneligible inmate who is unable to pay the hospital district at the time the services are rendered.

[6] We assume that X is in fact a noneligible inmate. If X is eligible for assistance under chapter 61 of the Health and Safety Code, either the county of residence or the hospital district of residence is liable, in accordance with chapter 61, for the cost of medical services X receives during his or her incarceration. See generally Attorney General Opinion DM-225 (1993); supra note 2 (citing Attorney General Opinion DM-225).