August 26, 1975
The Honorable W. J. Estelle. Jr. Opinion No. H- 676
Director, Texas Department
of Corrections Re: Payment to state employees
Huntsville, Texas 77340 injured or killed while per-
forming the duties of a
Dear Mr. Estelle: hazardous position.
You have requested our opinion regarding payment of compensation
under article 6822a. V. T. C. S., to state employees injured or killed while
performing the duti~es of a hazardous position. We note that although the
state employees workmen’s compensation statute, article 8309h, V. T. C. S.,
overlaps to some extent with the provisions of article 6822a, we do not
believe article 6822a has been impliedly repealed. -See Attorney General
Opinion H-338 (1974).
Specifically, you inquire:
(1) Whether inclusion of the~term”hazardous
position’ in article V, section 8 of the 1973
General Appropriations Act is consistent with
the language of article 6822a. V. T. C. S., which
authorizes payment of compensation to certain
state employees.
(2) Whether the administrative head of an
agency is authorized to determine which posi-
tions shall be classified as ‘hazardous positions. ’
(3) Whether an employee who works in a hazardous
position might be compensated for injuries received
while he is engaged in activities not related to the
hazardous classification.
p. 2945
.
The Honorable W. J. Estelle, Jr., page 2 (H-676)
Article 6822a provides:
Section 1. The Legislature is hereby authorized to
appropriate public funds for the purpose of paying
for drugs and medical, hospital, laboratory, and
funeral expenses of state employees injured or
killed while engaged in performance of a neces-
sary governmental function assigned to the employee,
or where the duties of such employee require the
employee to expose himself to unavoidable dangers
peculiar to the performance of a necessary govern-
mental function.
Section 2. Agencies of the state are hereby
authorized to expend appropriated funds for the
purpose of paying for drugs and medical, hospital,
laboratory, and funeral expenses to those state
employees under their jurisdiction and control
only when such employees are engaged in the acti-
vities described in Section 1 of this Act, and only
to the extent authorized by appropriations made
by the Legislature . . .
Article V, section 8 of the current General Appropriations Act’protides,
in pertinent part:
. . . appropriations made in this Act . . . may
also be expended for paying necessary drug, medical,
hospital, and laboratory expenses for the care a’nd
treatment of any State employee injured while per-
forming the duties of any hazardous position to which
he is assigned by his State employment. For the
purposes of this Section, ‘hazardous position’ shall
mean one for which the regular and normal duties
inherently involve the risk or peril of bodily injury
or harm . . .
p. 2946
The Honorable W. J. Estelle. Jr., page 3 (H-676)
In our opinion, article V, section 8 of the Appropriations Act
validly appropriates funds upon the authority of article 6822a. The
Legislature has chosen to implement only that portion of article 6822a
which provides compensation for those employees who are injured or
killed and whose duties “require the employee to expose himself to
unavoidable dangers peculiar to the performance of a necessary govern-
mental function. ” The definition of “hazardous position” in article V,
section 8 appears to be equivalent in all respects to the language of
article 6822a. and we perceive no inconsistency between these statutes.
-See Attorney General Opinion No. M-431 (1969).
Section 2 of article 6822a authorizes .the expenditure of appropriated
funds by “agencies of the state, ” and it seems apparent that, within
the terms of article 6822a and the definition of “hazardous position” in
article V, section 8 of the Appropriations Act, the power to expend
includes the authority to determine which positions are within the
statutorily-defined classification. Whether the administrative head
of a particular a’gency is himself cloaked with the authority to make
this determination depends upon the legislation creating the agency and
the powers conferred upon~ its chief administrative officer. We there-
fore cannot answer this question in general terms. In the case of the
Texas Department of Corrections, however, the Board of Corrections,
together with the Director, is vested with the general authority of
management and control by article 6166g. V. T. C. S. , and the Board
is directed by article 61663 to delegate to the Director the “authority
to manage the affairs of the prison system, subject to its control and
supervision.” Accordingly, we believe that the Director of the Texas
Department of Corrections is authorized, subject to the “control and
supervision of the Board of Corrections, ” to determine which positions
shall be classified as “hazardous positions. ”
As to your third question, it is our opinion that an employee may be
compensated only for those injuries incurred while actually “performing
the duties of [a] hazardous position to which he is assigned. ” If the
assignment is “hazardous. ” and an injury occurs, the employee may be
compensated, even though the injury is unusual or unexpected. In
Attorney General Opinion M-431 (1969), this office held that a psychologist
in a state hospital who contracted tuberculosis from a patient as a result
of a two-hour psychological examination qualified for compensation, since
the psychologist’s position was “hazardous” and since his “injury” was
p. 2947
The Honorable W. .I. Estelle. Jr., page 4 (H-676)
job-related. Thus, we believe that in order for an employee to receive
compensation pursuant to article 6822a and article V, section 8 of the
General Appropriations Act he must be assigne.d to a “hazardous position”
and further, his injury must directly result from performing the duties
of such hazardous position.
SUMMARY
Article V, section 8 of the 1973 General
Appropriations Act implements article 6822a.
V.T.C.S.. by authorizing payment of compen-
sation to any state employee killed or injured
while performing the duties of any “hazardous
position. ” Whether the administrative bead of
a particular agency is authorized to determine
which positions &all be classified as “hazardous”
depends upon the legislation creating the agency.
Any employee to whom compensation is paid
must be assigned to a “hazardous position” and
his injury must directly result from perform-
ing the duties of such hazardous position.
*Very truly yours,
Attorney General of Texas
DAVID=. KENDALL. First As$istant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2948
Untitled Texas Attorney General Opinion
Combined Opinion