An indigent defendant is not entitled to have the cost of a mental examination under Section 552.020, RSMo Supp. 1971 or Section 552.030, RSMo 1969, by a physician "of his own choosing" taxed against the state. However, costs of mental examinations made by "independent" physicians appointed by the court pursuant to such sections are taxable against the state in cases which come under the provisions of Section 550.020, RSMo 1969.

COMPTROLLER: CRIMINAL COSTS: An indigent defendant is not en- titled to have the cost of a men- tal examination under Section 552. 020, RSMo Supp . 1971 or Section 552.030, RSMo 1969 , by a physician "of his own choosing" taxed against the state. However, costs of mental examinations made by "independent" physicians appointed by the court pursuant to such sections are taxable a~ainst the state i n cases which come under the provisions of Section 550.020, RSMo 1969 . OPINION NO. 2 March 29 , 1973 Honorable Christopher S. Bond Governor of Missouri Office of Administration State Capitol Building Jefferson City, Missouri 65101 Dear Governor Bond: Fl LE 0 ~ Mr. John C. Vau~hn, the State Comptroller, req~ested an offi- cial opinion of the Attorney General as to the inquiry hereinafter set forth. Because the functions of State Comptroller have suc- ceeded to the Office of Administration, and the Comptroller's du- ties to the Commissioner of Administration, and, since in the ab- sence of a Commissioner of Administration, the Governor shall take char ge of such office and superintend the business thereof, we are therefore directing this opinion to you. Mr. Vaughn requested an official opinion of the Attorney Gen- eral as to the following question: "Does Section 552.080, Section 2 RSMo. 1969, require the office of Bud~et and Comptr oller to reimburse the County for fees or expenses provided in Sub- Section 1 of Section 552 . 080 RSMo. 1969, if the defendant has requested the psychiatric examination and is subsequently sentenced to the Department of Corrections?" He also advised that: "There is a difference of ooinions regarding this matter between the Prosecuting Attorney of Greene County and the office of Bud~et and Honorable Christopher S. Bond Comptroller. This office at the present time, allows payment for the examination when a per- son is acquitted of a crime punishable solely by imprisonment in the Department of Correc- tions, and when the examination is requested by the Prosecuting Attorney under the provi- sions of Chapter 550 RSMo. 1969." In our Opinion No . 56 dated January 27 , 1966, to the Honorable Claude E. Curtis, copy enclosed, we held that such cost of examina- tion of indigents incurred by the appointment of physicians by the court were not costs incurred on behalf of the defendant within the meaning of Chapter 550 relating to costs in criminal cases. We also held in that opinion that costs of an examination by a physician of the defendant's own choosing are costs incurred on his behalf. In o~r later opinion No. 340 and addendum thereto dated Decem- ber 10, 1971, to the Honorable Dee Wampler, cooy enclosed, we reaf- firmed our holding in the opinion to Curtis and further stated that our view is that the cost of examinations made by physicians ap- pointed by the court are not costs incurred on behalf of the defen- dant and where otherwise taxable against the state are so taxable. In order to more closely draw the distinction which you re- quire, please note that subsection 4 of Section 552 . 020, RSMo Supp. 1971, expressly provides that: " ... Within five days after the filing of the report [of the physician or physicians appointed by the court to make the examina- tion under subsection 2], both the accused and the state shall, upon written request, be entitled to an order granting them an examination of the accused by a physician of their own choosing and at their own ex- pense. • . . " A similar provision is contained in subsection 4 of Section 552.030, RSMo 1969. Therefore, with respect to costs incurred by reason of the appointment of a physician of a defendant's "own choosing" whether such defendant be indigent or not such costs cannot be paid by the state. As we have noted, however, in the enclosed opinions, both Sec- tions 552.020 and 552.030 provide for the appointment of physicians by the court. In the case of an indigent, the distinction between "a physician of their own choosing" and the appointment of an "in- dependent" physician by the court is made clear by the holding of -2- Honorable Chri stopher S. Bond the Missouri Supreme Court in State ex rel. Hoover v. Bloom, 461 S.W. 2d 841, 844 (Mo . bane 1971) in which the court stated that the provision of t he statute providin~ for a selection of a physician of one's choosing at his own expense is nothing more than a dec- l aration of what has always been a privilege of a person of means . However, the court concluded the indigent relator was not entitled to an examination by a physician of his own "choosing" but , in the fir st instance, it is for the trial court to make the selection of a physician to make an "independent" examination and the judge shoul d convince himself that the court appointed physician can f unction in such capacity. The thrust of your question is whether under Chapter 550 and par ticularly Sections 550.010 and 550.020, RSMo 1969, the state is prohibited from paying such costs because such statutes prohibit the payment of costs incurred on the part of the defendant . Section 550.010 provides : "Whenever any person shall be convicted of any crime or misdemeanor he shall be adjudged to pay the costs, and no costs incurred on his part, except fees for board, shall be paid by the state or county . " Section 550.020 provides in par t: "1. In all capital cases in which the de fen- dant shall be convicted, and in all cases in which the defendant shall be sentenced to im- pr isonment in the penitentiary, and in cases where such person is convi cted of an offense punishable solely by imprisonment in the peni- tentiary and is sentenced to imprisonment in the county jail, workhouse or reform school because such person is under the age of eigh- teen years , the state shall pay the costs, if the defendant shall be unable to pay them, ex- cept costs incurred on behalf of defendant . " However , as noted in our opinion to Curtis and in our subse- quent opinion to Wampler, the costs resulting from the appointment of an independent physician by the court on behalf of an indigent under Sections 552.020 and 552.030 are not costs incurred on the part of such defendant within the meaning of Sections 550 . 010 and 550.020. This View is supported by the decision of the Supreme Court in State ex rel. Hoover v. Bloom, above. Thus, while an in- di gent is not entitled to have the state pay for the examination -3- Honorable Christopher S. Bond by a physician "of his own choosing," he is nonetheless entitled to an ''independent" examination by a physician appointed by the court. We further note by comparison that the Missouri Supreme Court in Cramer v. Smith, 168 S.W.2d 1039, 1041 (Mo . bane 1943) held, with respect to the statutory provisions relating to furnishing trans- cripts on appeal to indigents, that: "It is not contended that the provision of Section 13344 [now Section 485.100, RSMo Supp. 1971], that the 'court reporter's fees for making the same [transcript] shall be taxed against the state or county as may be proper,' (Emphasis ours) which is found in Chapter 94 in relation to court reporters, authorizes a judgment, as for costs, against either the state or county as of the time the order is made . A fair construction requires us to hold that the language means said fee is to be taxed as costs, in the same manner as other costs are taxed, but with ultimate liability for the same on the state or county as may be proper under the general statutes in relation to criminal costs. Being thus relegated to the general statutes, it is ap- parent the provision of Section 13344 casting liability for such transcript on 'the state or county as may be proper' cannot be recon- ciled with Sections 4221 [now Section 550.020, RSMo 1969] and 4222 [now Section 550 .030, RSMo 1969], both of which expressly provide that neither the state nor county shall pay such costs 'as were incurred on the part of the defendant.' Section 13344, being the later enacted statute, must be held to have repealed, by necessary implication, the contrary provi- sions of Sections 4221 and 4222, to the ex- tent noted." The above holding is applicable in the premises because under Section 552.080 the costs a~e payable by the county as an interim payment (State v . Siecke, 472 S.W.2d 367 (Mo. bane 1971)) to be re- paid by the state "where the state • • • is liable for such costs under the provisions of chapter 550, RSMo." Thus, the contrary limitation imposed by Sections 550.020 and 550.030 excluding costs incurred on behalf of the defendant in such a case is, as in Cramer, repealed by necessary implication to the extent of the conflict . -4- Honorable Christopher S. Bond " ... The right of the defendant to an exam- ination by a specialist at the expense of the State would depend upon either a statute or rule granting such right or that it was essen- tial to due process of law .. •. " State v. Aubuchon, 381 S.W.2d 807, 813 (Mo . 1964) In the premi ses, it is our view that that right is granted by stat- ute and is essential to due process. CONCLUSION It is, therefore, the opinion of this office that an indigent defendant is not entitled to have the cost of a mental examination under Section 552.020, RSMo Supp. 1971 or Section 552.030, RSMo 1969, by a physician "of his own choosing" taxed against the state . However, costs of mental examinations made by "independent" physi- cians appointed by the court pursuant to such sections are taxable against the state in cases which come under the provisions of Sec- tion 550.020, RSMo 1969 . The foregoing opinion, which I hereby approve, was prepared by my assistant, John C. Klaffenbach. ~o;s ve:y :5~ ___cp_ Enclosure s: Op. No. 56 1/27/66, Curtis Op . Ltr. No . 340 12/10/71, Wamper JOHN C. DANFORTH Attorney General - 5-