THEA
AusTxN. TEXAS
January 31, 1950
Hon. C. H. Cavness Opinion No. V-993
State Auditor
Capitol Station Re: Construction and interpretation
Austin, Texas of H.B. 321, Acts 51st Leg., 1949,
Ch. 553, p. 1070.
Dear Sir:
You have requested anopinion regarding the construc-
tion and interpretation of House Bill 321, Acts 51st Legislature, 1949,
Ch. 553, p. 1070, which is an act making appropriations for the sup-
port, maintenance, and improvement of State hospitals and special
schools of this State and prescribing certain regulations and restric-
tions in respect to the expenditure of these appropriations. Your re-
quest reads as follows:
:‘We shall appreciate your interpretation of the
following:
” 1. House Bill No. 321, General Provisions,
Section 13(b). ‘. . . No position shall be supplemented
or be paid more than a specific amount as set by the
Board out of any other funds belonging to said insti-
tution or the State; . . . No salary shall be paid to any
person unless such person actually discharges assigned
duties . . . . It is further provided that employees. who
are required by law to render services to wards of
the State may charge for services rendered to others
and retain such portion of said charges as may be al-
lowed by rules and regulations of the Board.’
* (a) Does the above legally provide that physicians,
surgeons, oculists, dentists, and other professionals as
well as barbers, cosmetologists, etc., regularly employed
on full-time State appropriated salaries by State institu-
tions can render services to institutional employees and
other persons during regular institutional working hours,
using institutional facilities and supplies, or their own
personal supplies, and can legally charge, collect and re-
tain fees for their personal use and benefit?
“(b) Under existing laws, can the State Hospitals
and Special Schools, and the Correctional Schools legally
provide hospitalization, medical, surgical, dental and other
Hon. C. H. Cavness, page 2 (V-993)
professional care, and furnish drugs and hospital
supplies to institutional employees with or without
charge ?
“‘2. Section 20. Emoluments of Board Em-
ployees. ‘
In recognition of salaries paid wftbin in-
stitutions and in order to attract and retain qualified
supervisory personnel on the staff of the Board, the
Board is hereby authorized to allow emoluments to
such employees out of the funds and facilfties of one
or more of the institutions in Travis County.’
“(a) Does the above provision legally author-
ize the Board to furnish housing, provisions, meals,
laundry service, etc., for its employees at their head-
quarters in the City of Austin?
“(b) Could such “Travis County’ funds be used
to pay such emoluments to Board employees working
at its institutions in Counties other than Travis? w
In a supplementary letter relating to the above opinion
request, you have advised us of the following:
‘1. During the past fiscal year (and so far as
we know, up to the present time) a superintendent has
been orally authorized by a member of the staff of the
Board to perform operations and to otherwise treat
institutional employees, and to permit his staff of
physicians to do likewise, while regularly employed
by the State, using State facilities, drugs, etce., and
to charge employees for such services at regular
rates. These employees have been hospftalised in
the State institutions, with the institution billing the
insurance company that provides the State employees’
group insurance for the physician”s fees, and for hos-
pitalization separately (more work done by institutional
employees for the personal benefit of the physicians).
The physicians receive their fees, and the institutions
receive the hospitalization fees,
“2. For some yems past, and at present, certain
of the eleemosynary institutions. with oral sanction of
the Board, have permitted physicians, dentists, barbers,
cosmetologists to serve employees and others while
regularly employed by the State, using State owned fa-
cilities, supplies, etc., to charge nominal fees for such
services, and to retain such fees (or in some cases a
part of the fees) for their mownuse and benefit.
“3. For some years past, and at the present time,
all of the eleemosynary institutions have been, and are,
Hon. C. H. Cavness, page 3 (V-993)
providing hospitalization, medical, dental, and other
professional care, and drugs and hospital supplies
to institutional employees without charge. This is
now for employees who are not covered by group
insurance, but it has happened in some cases that
are covered by such insurance.
“4. One of the institutions has employed at
the same salary two dentists on the part-time basis,
neither of whom spend muchtiie in performing ser-
vices for wards of the State (at present this institu-
tion‘has inits emp~~oyone’fulltime dentist). One of the
part-time dentists for more than two years received
certain full emolument allowances specified for full-
time emsyment. At present this part-time dentist
is receiving a $90.00 per month ‘provisions allowance.’
The other part-time dentist is receiving no such emol-
uments.
“5. For a short time past and at present, one
State employee on the staff of the Board for State
Hospitals and Special Schools has been and is fur-
nished with a residence located on the grounds of one
of the institutions, and is given all other emoluments
provided for the superintendents of the various insti-
tutions. This employee’s salary is higher than a
superintendentUs salary.’
The information which you have furnished us presents
the following questions:
1. Can the Board of State Hospitals and Special @hools
authorize physicians, dentists, oculists, barbers, cosmetologists, and
other professional personnel regularly employed at State hospitals
and special schools to render services to persons other than patients
of such institutions, and to what extent, if any, can the Board determine
the amount and disposition of fees charged for such services?
2. Does the Board have authority to authorize hospitals
and schools under its direction to furnish hospitalization and medical,
dental, and other professional care to institutional employees without
+arge?
3. Does the Board have authority to authorize hospitals
and schools under its direction to furnish hospitalizationland medical,
dent& and other professional care to institutional employees when a
Icharge is made ?
4. Does the Board have authority to furnish housing, pro-
visions, board, and laundry to its staff employees in Travis County?
Hon. C. H. Cavness, page 4 (V-993)
5. Does the Board have authority to furnish hous-
ing, provisions, board, and laundry to its staff employees who are
working at institutions located in counties other than Travis?
Before discussing the questions presented, we willnote
certain statutes which are pertinent in construing and interpreting
House Bill 321, Acts 51st Leg., R.S. 1949, Ch. 553, p0 1070.
Article 3174, ,Vernon’s Civil Statutes, provides:
“Each eleemosynary institution established
by law shall be managed and controlled in accordance
with the provisions of this title. The general control,
management and direction of the affairs, property
and business of such institutions is vested in the State
Board of Control.”
Article 693, V.C.S., defines the powers of the Board of
Control in respect to eleemosynary institutions. This article pro-
vides, $n part:,
“The Board of Control shall have power:
“1. To makes rules and regulations for the
government of the State eleemosynary institutions,
not inconsistent with the constitution and laws.
“2. To appoint all officers and employees of
such institutions and fix their salaries and wages ~ D 9 Ouu
“7. It shall exercfse a careful supervision over
the general operations of such institutions and con-
trol the expenditures, and direct the manner in which
their revenue shall be disbursed. 0 o .ui
House Bill 239. Acts 51st Leg., R.S. 1949, Cb. 157, p0 324,
codified as Article 3174a, V,C.S., provides that State hospitals, schools,
and other institutions which have been known as “Eleemosynary Institu-
tions’” shall hereafter be known and designated as “Texas State Hospitals
and Special Schools.*
House’Bill 1, Acts 51st Leg., R.S. 1949, Ch. 316, p- 588, cod-
ified as Article 3174b, created the Board for Texas State Hospitals and
Special Schools. Section 2 of this act gives to this new board manage-
ment and control of State hospitals and special schools:
II
D . . Effective September 1, 1949, the control
and management of, and all rights, privileges, powers*
and duties incident thereto including building, design,
and construction of the Texas State Hospitals and
Hon. C. H. Cavness, page 5 (V-993)
Special Schools which are now vested in and ex-
ercised by the State Board of Control shall be
transferred to, vested in, and exercised by the
Board for Texas State Hospitals and Special Schools
”
* . . .
We see that by virtue of Article 3174b, V.C.S., the Board
for Texas State Hospitals and Special Schools succeeds to the powers
of management and control of hospitals and schools formerly vested
in the Board of Control. These powers of management and control
are defined in Article 693, V.C.S., supra. Therefore, there exists
general legislation which sets out powers of the new Board in respect
to management and control of the hospitals and special schools under
its jurisdiction.
In answer to question (1) regarding the Board’s authority
to authorize physicians, dentists and other employees of State insti-
tutions to render professional services to persons other than patients
of such institutions, we must turn to section 13(b) of H.B. 321, supra,
the current Appropriation Act for State hospitals and special schools.
This section reads, in part, as follows:
“The number of employees at each institution
and the salary of each shall be fixed by the Board. No
position shall be supplemented or be paid more than
a specific amount as set by the Board out of any other
funds belonging to said institutions or the state, . . .
No salary shall be paid to any person unless such
person actually discharg,es assigned duties . . . .&
is further provided that employees who are required
by law to render services to wards of the State mav
charge for services rendered to others and retain
such portion of said Charges as may be allowed by rules
and regulations of the Board.* (Emphasis ours)
Section 13(b) is a part of a general rider in the current
Appropriation Act for State hospitals and special schools. If section
13(b) purports to amend existing law, it is unconstitutional under Article
III. Section 35. Constitution of Texas, which prohibits the enactment of
subjects of g,eneral legislation in an Appropriation Act. Moore v. Shep-
paPd, 144 Tex. 537, 192 S.W.2d 559 (1946).
In keeping with the established rule that a construction
which renders a statute valid is favored over a\ronstruction which would
render the statute invalid, we are of the opinion that in enacting section
13(b) the Legislature did not intend to amend existing law.
It is our opinion that section 13(b) does not purport to author-
ize and could not authorize superintendents of State hospitals for the
Hon. C. H. Cavness, page 6 (V-993)
treatment of mental illnesses to engage in private practice, be-
cause of Section 1 of Article 3184, V.C.S., as amended, Acts 48th
Leg.,1943, Ch. 65, Sec. 1, p. 82, which provides that:
“The Superintendent of each State Hospital
shall be a married man, a skilled physician author-
ized to practice medicine in Texas, and shall have
not less than five (5) years experience in the treat-
nient of mental diseases. He shall reside at the
hospital with his family and shall devote his time
exclusively to the duties of his office, ~ ~ D ew
(Emphasis ours)
Since the above quoted section of Article 3184 speaks
in terms of “State Hospitalsa and prescribes that the superinten-
dents shall have experience in the treatment of mental diseases,
we conclude that this section of the statute applies only to the State
fnstitufiona~desigped for the treatment of mental illnesses and does
not apply to ‘other institutions under the jurisdiction of the Board
for State Hospitals and Special Schools. However, Article 3202c,
V.C.S., Acts 51st Leg., R-S., 1949, Ch. 493, p. 914, relating to super-
intendents of schools for the blind and deaf provides, in part:
“Sec. 3. The Superintendents of both the Texas
School for the Blind and the Texas School for the Deaf
shall reside at the respective school of which he is
superintendent and shall devote his time exclusively
to the duties of his office, o D a *Iy (Emphasis ours)
In view of the particular wording of Articles 3184 and
3202~. supra, it follows that the superintendents of the State mental
hospitals. the Texas School for the Blind, and the Texas School for
the Deaf, could not engage in private practice in any professional
field in which they might be licensed. We do not hold that the dutfes
of the office of superintendent could never encompass the performance
of professional services for others than wards of the State, but we hold
that these superintendents who are required to devote all of their time
to the duties of their offices could never occupy the position of an inde-
pendent contractor and thus receive separate compensation for services
so rendered.
There is no statute which requires superintendent of State
institutions other than State mental hospitals and the schools for the
blind and the deaf to devote their time exclusively to their respective
offices. Neither is there any statute which requires employees of State
hospitals and special schools, other than the superintendents hereto-
fore mentioned, to devote their time exclusively to the duties of their
respective jobs with the State.
.
Hon. C. H. Cavness, page 7 (V-993)
Consequently, you are advised that before as well as
after the enactment of H.B. 321, supra, employees of State hospitals
and special schools (except superintendents to whom Article 3184
and Article 3202~ apply) could be and may now be permitted to per-
form professional services for persons other than wards of the
State and to make charges therefor, acting in such instances as
independent contractors to perform said services. This is in ac-
cord with our expression in Attorney General’s Opinion No. V-303,
dated July 15, 1947, wherein it was held that a full-time employee
of the Highway Department was not prohibited by existing law from
working for others in the capacity of an independent contractor. How-
ever, in this Opinion it was also pointed out that the emplovee was
obligated to perform fully his duties to the Highway Department~in
order to comply with the Appropriation Act requiring that no salary
should be paid to any person unless such person actually discharged
his assigned duties. It was further observed that whether or not the
employee fully performed his assigned duties was a matter for the
officials of the Highway Department to determine.
The current Appropriation Act for State hospitals and
special schools also stipulates that no salary shall be paid to any
person unless such person actually discharges assigned duties. There-
fore, employees who render professional services to persons other
than wards of the State must also actually discharge their assigned
duties with the State institutions employing them. The responsibility
for determining whether such duties have been discharged lies with
the Board for State Hospitals and Special Schools.
Section 13(b) of H.B. 321, supra, after providing that em-
ployees of State hospitals and special schools may charge for services
rendered to persons other than wards of the State, further stipulates
that such employees may “retain such portion of said charges as may
be allowed by rules and regulations of the Board.” As heretofore ob-
served, we do not construeSection 13(b) as an attempt to change exist-
ing law or to enact a subject of general legislation. We have also;
observed that in performing professional services for persons other
than wards of the State and in receiving pay therefor, employees of
State hospitals and special schools are acting in the capacity of in-
dependent contractors. As independent contractors such employees
are entitled to retain all charges for services. H.B. 321, being a gen-
eral rider, does not change this rule. Therefore, we conclude that
the Legislature in enacting Section 13(b) of H.B. 321 intended to author-
ize the Board to require employees to turn over to the institution only
such portion of charges made for services as will reasonably com-
pensate the institution for the use of its facilities if same are used by
the employee in the rendering of professional services to persons other
than wards of the State. Accordingly, you are advised that if an em-
ployee of a State institution renders professional services to persons
other than wards of the State, he is entitled to retain all the charges
Hon. C, H. Cavness, page g-(V-993)
made for such service, except such portion as the Board may pre-
scribe as reasonable compensation for the use of State facilities.
Ia considering the authority of the Board to authorize
institutional employees to render professional services to persons
who are not wards of the State. we have assumed that in some in-
stances these employees will use State-owned facilities in reader-
ing such services. FOP example, we have assumed that physicians
will use offices at the institution and barbers will use equipment
belonging to the institution. We think such use of State-owned
facilities by employees is contemplated in the contract of employ-
ment between the institution and these employees. However, we
do not advise that physicians could hospitalize their private patients
in State hospitals. There are statutory provisions whichlprescribe
procedure for admittance to the various State hospitals. We think
that no person exeept an institutional employee (under certain eir-
cumstances hereinafter discussed) is entitled to hospitalization in
a State institution unless such requirements for admittance are met.
Therefore, physicians using State-owned facilities in the treatment
of patients (other than State wards) are, in our opinion, limited in
the use of such facilities, as more particularly pointed out in an-
swer to question (3), infra.
Question (2) presents the question of whether the Board
for Texas State Hospitals and Special Schools may lawfully author-
ize State institutions to provide hospitalization or medical, dental,
or other professional treatment to employees without charge. We
think not.
Free hospitalization to the employees is not a part of
the perquisites authorized to employees by Sec. 12 of H.B. 321, supra.
This Section reads as follows:
“Sec. 12. Perquisites of Employees: (a) Under
writtan direction of the Board, institutional employees
may receive such perquisites as the Board may by
rule ,and regulation prescribe.”
Although the word “perquisites” in its literal sense may
be broad enough to include medical and other professional treaiznent,
we do not think the Legislature intended in this instance that the word
should be given so broad a construction. We think that the Legislature
intended the word ‘perquisites” to include only housing, board, pro-
visions, fuel, lights, water, and laundry. We have reached this con-
clusion from an examination of previous appropriation acts for ele-
emosynary institutions.
For example, S.B. 374, Acts 50th Leg., 1947, Ch. 330, pa
566. . 611. contains the following reference to “perquisites”:
1 Arts. 3184-3263~. incl., V.C.S.
Hon. C. H. Cavness, page 9 (V-993)
“Perquisites of Employees. (a) When it is
provided that the family of a superintendent, of-
ficer, or employee of any of said institutions, are
permitted to live at said institution, and are to .be
furnished with board, fuel, lights, laundry, water,
housing, or any of said items, the word ‘family,’
shall be construed to mean the immediate family
of said superintendent, officer, or employee, in-
cluding himself, wife and legally dependent chil-
dren.”
Furthermore, in the 1947 Appropriation Act, under the
heading “Salaries,” there are several provisions similar to the fol-
lowing:
“(Superintendent, Assistant Superintendent
and all full-time physicians, phyehiatrists and Den-
tists to receive housing, provisions,utilities, and
laundry for self and family.)”
At no place in the 1947 Act can be found any provision
authorizing hospitalization or medical or other professional treat-
ment as a part of an employee’s emolument.
The 1 45, 1943, and 1941 Appropriation Acts for eleemosy-
nary institutions ? are practically identical to the 1947 Act in respect
to enumerating perquisites of employees. From this general course
of legislation in which the word “perquisites” has been used only in
connection with housing,.provisions, board, water, light, fuel, and
laundry, we are of the opinion that the 51st Legislature in using the
term “perquisites” intended it to include only such items as those
enumerated in previous appropriation enactments and did not intend
the term “perquisites” to include hospitalization or medical or other
professional treatment.
You are accordingly advised that the Board may not law-
fully authorize State hospitals to provide free hosp,italizatioa,, medical
care or dental or other professional treatment to employees.
We next consider question (3) with reference to whether the
Board for State Hospitals and Special Schools may authorize hospitals
and schools under its direction to provide hospitalization, medical care
and other professional treatment to employees where a charge is made.
We have heretofore pointed out that there are statutory pro-
visions which prescribe requirements for admittance to State hospitals
and schools. 3 There is nothing in these statutes to indicate that compliance
2 H.B. 206, Acts 40th Leg., R.S. 1945, Ch. 237, p. 323; H.B. 666,
Acts 48th Leg., R.S. 1943, Ch. 398, p. 726; S.B. 402, Acts 47% Leg.,
R.S. 1941, Ch. 567, p. 939.
3 See statutes listed in footnate 1, page ,8..
Hon. C. H. Cavness, page 10 (V-993)
with the prescribed requirements for admittance is not mandatory,
Therefore, you are advised that ordinarily an employee of a State
hospital or school may not receive hospitalization in the State in-
stitution in which he is employed even though a charge therefor
is made, unless such employee complies with the statutory re-
quirements for admittance. However, we do not say that under
no condition can such hospitalization be rendered. For example,
we do not hold that under unusual or emergency circumstances an
employee is prohibited from receiving hospitalization from the in-
stitution. Some of the institutions are located several miles from
the nearest community. In the event an employee should require
immediate emergency hospitalization, it is unreasonable to assume
that he should be denied facilities in the institution.
We have been advised that a number of employees at
each institution live on the premises aB an accomodation to the in-
stitution. Some of the employees are quartered in buildings located
a considerable distance from other institutional facilities. If one of
these employees becomes ill and is confined to his bed, he has no
access to other institutional facilities, particularly meals, to which
he is entitled. In addition he cannot be given adequate attention, Un-
der such circumstances we think it would be permissible under exist-
ing law to allow this employee to use institutional hospital facilities
provided a charge is made therefor. Since this employee resides at
the institution, the institution can safeguard its employee’s welfare
to this extent. We believe that it is the indiscriminate use of institu-
tional hospital facilities by employees that is unauthorized.
In respect to other professional treatment, we find no
authorization for employees who have not complied with the require-
ment for admittance to obtain and pay for professional treatment in
the State institution in which they are employed. The State is not en-
gaged ih the profession of medicine or cosmetology. On the other
hand, we have concluded that physicians, barbers, and other employees
acting as independent contractors, may use, to some extent, institu-
tional facilities in the treatment of private patients, the use of such
facilities being an incident to the contract of employment between the
institution and the professional employees. Institutional employees
desiring professional attention are not precluded from receiving same
from other employees acting as independent contractors but using in-
stitutional facilities. The charges made for such services are of no
interest to the institution or the State, except that where institutional
facilities are used, the Board is authorized to prescribe reasonable
compensation for the use of State-owned facilities from the profes-
sional persons rendering the services.
Accordingly, you are advised that except in unusual cir-
cumstances the Board cannot authorize hospitals and schools to fur-
nish hospitalization and professional treatment to employees even
where a charge is made therefor; however, an employee may receive
Hon. C. H. Cavness, page 11 (V-993)
piofessional services from another institutional employee who is
acting as an independent contractor but who is to a limited degree
using institutional facilities.
In answer to question (4) we think that H.B. 321 spe-
cifically authorizes employees of the staff of the Board for State
Hospitals and Special Schools to receive emoluments out of the
funds and facilities of one of the institutions in Travis County. Sec-
tion 20, H.B. 321, reads as follows:
!‘Emoluments of Board Employees: In recogni-
tion of salaries paid within institutions and in order to
attract and retain qualified supervisory personnel on
the staff of the Board, the Board is hereby authorized
to allow emoluments to such employees out of the funds
and facilities of one or more of the institutions in Travis
Comity.*
The answer to question (5) is also found in the above quoted
section. This section does not distinguish between Board employees
working in Travis County and those working in other counties. Under
this section it appears immaterial where the Board employee is work-
ing. Therefore, we advise you that the Board is authorized to allow
emoluments out of funds and facilities of one or more of the institu-
tions in Travis County to Board employees who are working at institu-~
tions outside of Travis County.
SUMl&RY
The Board for Texas State Hospitals and Special
Schools can authorize physicians, dentists, barbers, and
other professional employees at hospitals and schools
under the Board’s supervision to render professional
services to persons other than wards of the State, pro-
vided such employees fully discharge assigned duties to
the State. In rendering such services the employee does
so in the capacity of an independent contractor. If State-
owned facilities are used in performing such services, the
Board is authorized to determine and collect a reasonable
charge as reimbursement to the State.
The Board has no authority to authorize hospitals
and schools under its direction to render free hospitaliza-
tion or medical and other professional services to employees
of such institutions. Except in unusual eiroumstances, such
as in case of an emergency, employees of Stati hospitals
and special schools may not be hospitalized in one of these
Hon. C. H. Cavness, page 12 (V-993)
institutions even though a charge is made.
The Board may give emoluments to its staff
employees out of the funds and facilities of any of
the institutions in Travis County under the Board”s
supervision. Emoluments out of the funds and
facilities of State hospitals and special schools in
Travis County may be given to any employee of the
Board, even though the employee is working at an
institution outside of Travis County.
Yours very truly,
PRICE DANIEL
Attorney General
APPROVED:
Charles D. Mathews
ByT!-;?+-&
Pat T. Peyton, Jr-
Executive Assistant Assistant
WEG:v