Untitled Texas Attorney General Opinion

1 * . - The Attorney General of Texas November 24, 1981 MARK WHITE Attorney General Honorable Dan W. Heard Opinion No. NW-393 Supreme Court Bullding Criminal District Attorney P. 0. Box 12546 A&in. TX. 76711 Calhoun County Courthouse Re: Payment of COUllty 5121475.2501 Port Lavaca, Texas 77979 hospital medical staff for Telex 9101674-1367 treatment of indigent Telecomer 512M750266 patients at the hospital 1607 Main St.. Suite 1400 Dear Mr. Heard: Dallas. TX. 75201 2141742-6944 You have requested our opinion on the following question: 4624 Alberta Ave.. Suite 160 Is it proper for a county or a county hospital to El Paso. TX. 79905 pay doctors on the medical staff of the county 9 1 w.33.3164 hospital for treating indigent patients at the hospital? 1220 Oallas Ave.. Suite 202 SCamtori provisions governing county hospitals are found in V.T.C.S. Houslon, TX. 77002 7131650-0666 article 4470, et. seq. General management and control of a county hospital is vested in 606 Broadway. Suite 312 a board of managers under article 4480. V.T.C.S.. which provides, in Lubbock. TX. 79401 6061747.5238 part, as follows: The board sball also appoint a staff of visiting 43W N. Tenth. Suite B physicians who shall serve without pay from the McAlle”. TX. 76501 county I and who shall visit and treat hospital 512!662-4547 patients at the request either of the managers or of the superintendent. 200 Mam Plaza. Suite 400 San Anlonw,. TX. 76205 Said board shall fix the salaries of the 5121225.4191 superintendent and all other officers and employees within the limit of the appropriation made therefor by the commissioners court. and such salaries shall be compensation in full for all services rendered. The statutory scheme of article 4480 thus contemplates two potential classes of physicians who may be on the medical staff of a county hospital: physicians who are employees of the hospital and visiting physicians. With regard to the former class, article 4480 makes cLe;lr that their salaries art cull compensation for all services p. 1335 ’ I . Ilt,nornbIe Dnn W. Heard - Page 2 ofw-391, .’ rendered, regardless of the financial status of the patients receiving CllC services. In Attorney General Opinion O-2422 (1940), this office held that the board of managers of a county hospital could not allow claims of physicians and surgeons for services rendered to charity patients in a hospital. This opinion has not been overruled by this office or modified by the legislature. We believe it is dispositive of your qucscion. It has been suggested that the Professional Services Procurement Act. article 664-4. V.T.C.S., impliedly repeals article 4480, V.T.C.S., and requires that a county pay reasonable fees~to doctors on the medical staff. Article 664-4. V.T.C.S.. provides in pertinent part: Sec. 2. For purposes of this Act the term ‘professional services’ shall nean those within the scope of the practice of accounting. architecture. optometry, medicine or professional engineering as defined by the laws of the State of ‘Texas or those performed by JnY licensed architect, optometrist, physi~cian, surgeon, certified public acccuntant or professional ong’ineer in connection with his professional employment or practice. sec. 3. No state agt?ncy , political subdivision, county, municj~pality, district, authority or publicly-owned utility of the State of Tcsas shall mtikc any contr:lct for, or cngilge cite professional services 0i. 3n~ 1icensed physicinn, optometrist, surgeon, architect, cerl i Tied public accountnnc or registered enp i lw*r, or any group or association ch?r.$of, selt!c~tcd u,, the basis of competitive bids submitted fur such contract or for such services to be performed. but shall select and award such contracts and enenge such scrviccs on the basis of demonstrated competence and qualifications for the type of professional services to be performed and at fair and reasonable prices, as long as professional fees are consistent with and not higher than the .published recommended practices and fees of the various applicnble professional associations and do not exreed the maximum provided by any state lav. llonornhle I)~IIIW. Ilr:ard - PnRc I (Mu-‘I’)3 t Contracts entered into in vi~~latio,n oi this statute arc void as contrary to public policy. V.T.C.S. art. hb4-4, 54. In our opinion, the put-pose of this statute was to ensure that competitive bidding statutes would wt be applied to the employment of persons in the enumerated professions. The emergency clause ciearly expresses this intent: Sec. a. The fact that tile selection of certified public acco”ntants. architects, physicians. optometrists. surgeons and professional engineers on the basis of the lowest bid places a premium on incompetence and is the most likely procedure for -selecting the least able or qualified and the most incompetent practitioner for the performance of services vi,tally affecting the health, welfare and safety of the public and that, in spite of repeated expressions of the legislature excepting such professional services from statutes providing for competitive bidding procedures, some public officers continue to apply competitive bidding procedures to the selection of such professional personnel, cr‘eaten an emergency of the greatest public importance to the health. safety and welfare of the people of Texas and an imperative public necessity requiring that the Consritutional Rule that bills be read on three several days in each House bc suspended. and such Rule is hereby suspended, and this Act shnil take eii-,tct from ;~nd after its pnssngc. and it is so enacted. Acts 1971, h.‘nd I.ef., ch. 38, $8, at 72. The c:;;erRt’ncy c Lnusc nay be considered in ascertaining the legi~slativc intent .ZXpr~SSed in a statute. Houston Belt Terminai & Ry. Co. v. Clark, 143 S.W.Zd 373 (Tex. 1940). Article htG+-4. V.T.C.S.. did not impliedly repeal every statute authorizing the appointment of a physician to a pclblic service position carrying little or no compensation. See. e.g., ?ledical Practices Act, 552.05, 2.06, Acts 1981, 1st C.S., ch. 1, §l (qualifications nnd compensation of members of Board of tledicnl I:.xamiuers). Section 3 of article bh4-4, V.T.C.S.. clearly states that professional Fees must not “exceed the maximum provided by any state law.” Article 44RO, V.T.C.S., pl-ov:ides that visiting physicians shall scrvc withalt p%~y irom the county. ‘l‘tlnl~, the provisions of article 664-4, V.T.C.S., 2nd article i4t40, v.1‘.c:.s., m;,” hr cvnstrued in harwny . hrtirlc 664-4, V.T.C.S., prcvtwts puhiic officials from cnRag:i ng tt,t: :,t.ltnl professional SL~TV ic.vs aw crmkp<‘ti tive hids and Honorable Dan V. Heard - Page 0 (MU-393) restricts their discretion in setting compensation by requiring reasonable fees. It has no bearing where the legislature has enacted a statute setting or denying compensation for physicians and other professionals. We conclude that the board of managers of a county hospital may not pay physicians for treating indigent patients at the hospital. SUMMARY Article 4480. V.T.C.S., prevents a county from paying doctors on the medical staff of the county hospital for treating indigent patients at the hospital. ,&m Attorney General of Texas JOHN W. FAINTER, JR. First Assistant Attorney General RICHARD E. GRAY III Executive Assistant Attorney General Prepared by Susan L. Garrison Assistant Attorney General APPROVED: OPINlON COMMITTEE SUSJll II. Cnrrison, Chairman Jon I!ible Rick Cilpin J im Moe 11 inger firuse Youngblood p. 133x