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Mr. William 3. Burke Opinion NO. c-706
Executive Director
State Board of Control Re: Construction of Section 8 of
P. 0. Drawer GG Article V of House Bill 12,
Capitol Station Acts of the 59,thLe islature,
Austin, Texas 78711 Regular Session, 19t5, (General
Appropriation Act) relating to
payment for injuries for state
employees injured while per-
forming the duties of any
hazardous position to which
Dear Mr. Burke: he is assigned.
Your request for an opinion on the above subject
matter concerns the following facts contained in your request,
which are summarized as follows:
A state employee while performing duties of a
hazardous position was severely burned on the left
arm, back, shoulders, neck, face and hands resulting
from an electrical explosion and ensuing fire which
occurred on the fifth floor, west end of the Sam
Houston Office Building. He received medical treat-
ment at and was confined to a hospital.
Pursuant to the provisions of Section 8 of Article V
of House Bill 12 of the 59th Legislature, Regular Session, 1965,
(General Appropriation Act), a request was made to the Governor
by the Board of Control for the approval to pay such expense for
the employee's injuries and care that was not covered or defrayed
by hospitalization carried by the employee. The Governor approved
the payment of such hospital, medical and related expenses of
the employee associated with the above described injury. Upon
submitting the voucher for payment, the Comptroller of Public
Accounts questioned the validity of an item of expense, to wit:
the examination in testing the employee's eyes for evidence of
injury, the prescribing and replacement of lenses and frames of
the employee's glasses. Section 8 of Rouse fill 12, supra.,
limits expenditure of monies governed thereby to "paying neces-
sary drug, medicall:hospital and laboratory expenses for the
care and treatment of the injured employee.
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Mr. William J. Burke, page 2 (c-706)
You state in your request that the examination and
testing of the employee's eyes for evidence of injury revealed
that:
"His eyes were uninjured due to the fact that
he wears prescription glasses. The lense of the
glasses and the frames of his glasses were ruined
by the spewing molten metal and electric arc. With-
out the protection of eye glasses he very likely
ccjdld have lost his eye sight--or at best could
not have escaped the area without eye damage and
sight impairment--the de ree or amount of loss
under the circumstances 7without glasses) is
speculative but nonetheless certain--the scarred
lenses attest to this fact."
The Legislature has defined the practice of medicine
in Article 4510, Vernon's Civil Statutes, as follows:
"Any person shall be regarded as practicing
medicine within the meaning of this law:
"(1) Who shall publicly profess to be a
physician or surgeon and shall diagnose, treat,
or offer to treat, any disease or disorder, men-
tal or physical, or any physical deformity or
injury, by any system or method, or to effect
cures thereof; (2) or who shall diagnose, treat,
or offer to treat any disease or disorder, mental
or physical or any physical deformity or injury
by any system or method and to effect cures there-
of and charge therefor, directly or indirectly,
money or other compensation;
. . .II
II
The Legislature has defined the practice of optometry
in Article 4552, Vernon's Civil Statutes, as follows:
"The practice of optometry is defined to
be the employment of objective or subjective
means, without the use of drugs, for the pur-
pose of ascertaining and measuring the powers
of vision of the human eye, and fitting lenses
or prisms to correct or remedy any defect or
abnormal condition of vision. Nothing herein
shall be construed to permit optometrists to
treat the eyes for any defect whatsoever in
any manner nor to administer nor to prescribe
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Mr. William J. Burke, page 3 (c-706)
any drug or physical treatment whatsoever, un-
less such optometrist is a regularly licensed
physician or surgeon under the laws of this
State.
. . .1,
,l
In Baker v. State, 240 S.W. 924 (Tex. Crim. 1922),
the Court made the following observation:
"It seems obvious that defects of vision
may result from disease of the eye and other
organs of the body. It is conceded and the
optometrist must discern that the impairment
which he seeks to remedy by lenses is not
consequent upon disease. It follows that,
while the eye operates upon mechanical prin-
ciples, it cannot be treated as a mechanism
alone. Its vitality as an element of the
human body cannot be overlooked. Other or-
gans of the body function upon mechanical
principles; for example, the heart as a
pump, the muscles as levers; but they, like
the eye, are nevertheless organs of the
human body, and each organ is, to a degree,
interrelated with all the others."
With regard to the replacement of the lenses and
frames of the eyeglasses destroyed by the electrical explosion
and ensuing fire, the discussion concerning an eyeglass frame
in Williamson v. Lee Optical of Oklahoma, 75 S.Ct. 461, 348
U.S. 483 (1955) is applicable to th facts involved in your
request. In thi Williamson case, iteis stated:
"An eyeglass frame, considered in isolation,
is only a piece of merchandise. But an eyeglass
frame is not used in isolation, as Judge Murrah
said in dissent below; it is used with lenses; and
lenses pertaining as thex do to the human eye, en-
ter the field of health.
Under the facts submitted, you are advised that the
fees and charges for the examination and testing of the employee's
eyes for evidence of injury, the fitting of new prescription
lenses and the replacement of frames and lenses are properly pay-
able under the language of Section 8, Article V, House Bill 12,
Acts of the 59th Legislature, Regular Session (1965), and the
authority granted in the letter of approval from the Governor.
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Mr. William J. Burke, page 4 (c-706)
SUMMARY
Where an employee is injured the necessary
fees and charges for an examination and testing
of the employee's eyes for evidence of injury,
the fitting of prescription lenses and the re-
placement of frames for the lenses is roperly
payable under the language of Section fi of
Article V of House Bill 12, Acts of the 59th
Legislature, Regular Session, 1965, wherein it
authorized the paying of necessary drugs, medical,
hospital and laboratory expenses for the care and
treatment of a state employee injured while per-
forming duties to which he was assigned.
Very truly yours,
WAGGONER CARR
Attorney General of Texas
John Reeves
Assistant Attorney General
JR:sck
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Wade Anderson
Mark White, Jr.
John Banks
J. C. Davis
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright
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