‘Txs~ ATTORNEY GENERAL
OF TEXAS
Honorable Homer Garrison, Jr.
Director
Texas Department of Public Safety
Austin, Texas
opinion No. ww-566
Re: Can the Texas Departient of
Public Safety lawfully expend
from appropriated funds to pay
for medioal service; medical
bills and hoepltelizatlon ex-
pense for employees injured in
line of duty, and related
Dear Col. Gerrleon: questions.
We.have received your letter of February 19, 1959, In which yoi
request our opinion on the following queatione:
"1. Can the Texas Department of Public Safety lawfully
expend from appropriated funda ta pay for medical service,
medical bills and hospitalization expense for employees ln-
Jured in line of duty?
"2. Can the Department lawfully expend appropriated
funds to pay for funeral expenses of employees when death
results in line of duty?
“3. Can the Department lawfully pay for medical ser-
vice in connection with physical examinations given to pros-
pective employees for the benefit of the Department 80 that
it may determine whether they are physically qualified for
employment?
“4. Can the Department lawfully pay for medical service
in connection with physical examinations of its employees for
the benefit of the Department to determine their physical
fitness for retention in the Department, promotion, or trane-
fed"
Because of the considerationa involved, we will anewer Questions 1
and 2 together.
Section ti, Article III of the Constitution of Texae, reads in
pert as follows:
Honorable Homer Garrison, Jr., page 2 (~~-566)
“Sec. 44. The Legislature shall provide by ‘lav for the
compensation of all officers, servants, agents and public con-
~otOre, not provided for in this C6netitution, but shall not
grant extra COmpenSatiOn to any officer, agent, servant, or public
contractore, after such public servioe shall have been performed
or contract entered into, for the perfonuance of the same; nor
grant, by appropriation or otherwise, any amonnt of money out
of the Treasury of the State; to any Individual, on a claim,
real or pretended, when the eeme ehallnot have been provided
for by pre-existing law; + s .” (Emphaele onre.) ., ~,
Seatlon 51 of Article III of the Conetitution of Texas providee
in part as follows:
"sec.51. The Legislature ehall have no power to tike
any grant or authorize the making of any grant of public money
to any Individual, aaaociation of individuale, mnnioipal or other
corporations whatsoever; . . .“(With certain listed exoeptione.)
In an opinion dated ~JanUary lb, 1938,t%Eonorable &eo$H: 1~;
Sheppard, Comptroller of Public Acoounta, this Department held ~th&t,
neither Sebtiti 44 nor Seotion 51 of Artlolb III of the C&etitutl’ti :-. :
of Texas, preoluded the Department of Public Safety iram”paying hoepi-
talization, medical aervioee or funeral expenses of highway pamlmen
injured or killed in the line of duty. The appropriation bill there
involved provided fund8 for th& payment of hosplt&zatlon, medical
servioee and funeral expenses of the patrolmen InJtied or killed in the
line of dnQ. This oonol~sion was reaohed because thie Department was
of the opinion that providing hospitalization, medical service6 and
funeral expenses ias a condition of employment a.8 a patrolman. It wae
held that such did not constitute prohibited additional oaupeneation,
nor did it constitute granting of public money to a private individual.
In the case of Byrd v. City of Dallae, et”a1, 118’~Tex. 28, 6
S .W0 2d 738 (1928)) the Supreme Court of T&as had before it the ques -
tion of the oonatitutionallty of certain laws which provided for a
pension plan for retired policemen and firemen.
The Supreme Court In that case said:
” 0 * . It is academic to say the Iagielature hae power to
pass any law which its wisdom suggests that is not forbidden
by ecme provisions of the Constitution (federal or state). If
the peneion provided for in this act ie a gratuity or donation
to the beneficiary, it is clearly forbidden by the f~damental
lav, On the other hand, ff it is a part of the oompeneation
of such employee for services rendered to the city, or if it
be fir a publio purpose, then clearly it le a valid exercise
of the legislative power.”
Honorable Homer Garrison, Jr., paga 3 (VW-566)
The Court goes on to say that there is no reason why a city
may not engage ita servanta and employees upon any terms of payment ao-
ceptable ~to'bothparties. We feel this reasoning is applloable to the
State aa well,, 80 long as there is pre-existing law authoriz,lng the
appropriation of funds for; the payment for the services rendered.
The B rd'case~ (supra) iri'cited with approval in Attorney Gen-
eral's Opinion -50- 140 dated Deoember 9, 1941, which opinion approvea
the payment of comparable itema to employees of the~Harris County Savi-
gation District. In that opinion, the controlling distinction is made
between a sltuation'wherein the employment oontra6twit.h the employee
is madefor a determinable sum per month plus an mount of medical at-
teutionj and the situation, onthe,other hand, where a determinable
aahry is established end paid, without a prcmiae of the medicalatten-
tlon, 'then at a subsequent date, after payment of the contract salary
and performance of the services of the contract, medical eervioe is
given inaddition ,to the contract salary.
In your supplemental letter dated February 27, 1959, you in-
formed UB that since the above mentioned 1938 opinion, the.Departnmnt
of Public Safety has recruited ite law enforcement personnel with the
understanding that they would reoeive such benefite for injuries or
deathincurred in the line of duty, and that'frcaz that time your De-
partment has had an established procedure for making such payments.
You alao,stat+ that such understanding ia a condition of employment
of such personnel and la 80 conaldered by your Department. To reach
the applicable law, we shall aeaume such to be the case.
.-~
~Under'such clro&tancea, we feel~that there ia no ooneti-
tutional~prohlbition agalnst making such payments provided there la an
appropriated fund. authorized by a~pre-existing law from which such pay-
ments may be made.
The Legislature has, by general statute, authorized the pay-
ments of such expenses. Article 44l.3 (a), Vernon's Civil Statutee,
(1957; 55th Leg., l&t Called Session, Ch. 24, p. 99) reada In part 88
follows:
"In addition to the authority now provided by law z
Texas Department of Public Safety may expend public funds
for the purposes of paying ealarlaaj '. i ~. drugs. medical,
hospltal’and laboratory expense, ‘Andyfuneral exuenee when
death results in line of duty, . . .” (Emphasle added.)
This statuts~ is authorlzatiti’, not only for’ the ty$e of em-
ployment contract here made, but is pre-existing law to support the
later appropriation by the Legislature.
Moneys,appropriated to the,Texae Department of Public Safety
by the provisiona of House Bill 133,,Acte of,t$e'55thY+@slature,
Honorable Rnm& &r&on, Jr., page 4 (wir-566)
Regular Session, 1957, Chapter 385,ma&e it olear that h portion of lithe
fund? there,approprfsted are for”, .’ ifuneral ex,pense when death re-
sults in Kline of duty."And, the abovei’mentioned aot (Article ‘%413(a) ,.I
Vernon’8 Civil Statut8e) in Sectl9n-~‘2 tieappropriates thoee funds also
foi. “. ~. ~. t&e purpoeee, set out In Seo,tlon 1 of this Ant, in addition
0 the purgmh named in . . ...‘” the appropi%ation bill;
A~~S~prdprla&u authorieed~by &!exiqting ,Isw has been
‘pas&! by~the, legibiature c& this Stat+ t@ &y drug,~.medMai, hoepit+ :
and : laboratory ~expeniseeof Departint of.:Pu~lio Safetf$ereonnel~~whea
i in,@d $n.:line of ‘due,, & funeral expense6 When death ,msulta in
line ,of.~dti.tg,,,..:Tpe prcrmiee coineuoh paymenti was a~condition fl employ-
ment, of auoh’,pereonnel. We are unable~ to determine q~oonatltutional
,probib~ition wiiioh would withhol&suoh pajmetits If&’ those whd ha+e
‘: The o~ntrolling dietinotion~here ie whether such examlnatione :-
tire given to employeea and prospective em@l’oyeee of the DeOarfrment inc&-
.dent to agd.,in, ‘furtheranoe of,, th&~goverzPnental .funation of ~t,he.Depart-:
menti or whether they ,&. given for the private benefits of the :%m+’ ’: ~~
ployee involvSd. The nature of the information sou&t ‘in a phyeloal
examination ie .auoh’that it oan~ be obtained only by a qualiiied medical
examiner atid ,ocinriot be obtained by the rqgu~lsr Departs& personnel.
In the event examinations 'for the benefit, of the ‘ermployeee involved were
t.6 be attempted, suoh would be prohibited by Section 51 of Article III
of the Texas Constitution quoted above. ‘~
tie examinationa you inqutie abdut are, lx~~ouropinion given
for’ the benefit of &he Department In ,order for the Deprtmetit to .deter-’
mine if the poreone involvsd~ we phyeioally able to perform thelx
.offiololly ahigned duties.:. The ‘examinationa would olearly be In f&-
therqoe of the Stdte’e purpose, and therefoi’e, would have a goveni-
~mental purpose. tie anaver to your Queation~ 3 and 4 is in, the af-
firmatlv?. ‘~
llle Department of Public Safety may pay the
medioal rind funeral expenses of employees in-:
$ared or k$ll.ed In line of duty 80 long as
Honorable Homer Garrison, Jr., page 5 W-56)
the praise of such paymetits is a~coti-
ditlon of employment of the employee;
expeneea for medical servioe inourred in
giving employees or pmspective employ6es
physical examinations may bd p&d if the
examinations nre given in furtherance of
the State's purpose.
Very t”.4 Jo-,
WILLuIIIsoI!r ‘.~’
Attorney General of Texas
&.+A.
BY d
Tcm I;'-M&erling
Assistant
TI&mg:me
AFPR0VED:
0Pnv10Ip ClzMMITTBR
Gee. P.Blaakburn,Chairman
John Reeves
Gordon C. Cass
JackGoodman-
Riley X. Fletcher
RRVDNEDFORlEEATlQRliEZQXERAL
By:
W. V. Geppert