August 26, 1975
The Honorable W. J. Estelle. Jr. Director, Texas Department of Corrections Huntsville, Texas 77340
Dear Mr. Estelle: Opinion No. H- 676
Re: Payment to state employees

injured or killed while performing the duties ofa hazardous position.
You have requested our opinion regarding payment ofcompensation under article 6822a. V. T. C.S., to state employees injured or killed while performing the duti~esofahazardous 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C.S., overlaps to some extent with the provisions ofarticle 6822a, we do not believe article 6822a has been impliedly repealed.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 8ofthe 1973 General Appropriations Act is consistent with the language ofarticle 6822a. V. T. C.S., which authorizes payment of compensation to certain state employees. (2) Whether the administrative head ofan agency is authorized to determine which positions 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 ofpaying for drugs and medical, hospital, laboratory, and funeral expenses of state employees injured or killed while engaged inperformance ofa necessary governmental function assigned to the employee, or where the duties of such employee require the employee to expose himself tounavoidable dangers peculiar to the performance ofa necessary governmental function.
Section 2. Agencies ofthe state are hereby authorized to expend appropriated funds for the purpose ofpaying 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 activities described in Section 1ofthis Act, and only to the extent authorized by appropriations made by the Legislature

. . . Article V, section 8 ofthe current General Appropriations Act’protides, inpertinent 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 ofany State employee injured while performing the duties ofany hazardous position towhich 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 ofbodily injury or harm

. . .

p. 2946The Honorable W. J. Estelle. Jr., page 3 (H-676)

In our opinion, article V, section 8ofthe Appropriations Act validly appropriates funds upon the authority ofarticle 6822a. The Legislature has chosen to implement only that portion ofarticle 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 ofa necessary governmental function. ” The definition of “hazardous position” inarticle V, section 8appears tobe equivalent in all respects to the language of article 6822a. andwe perceive noinconsistency between these statutes. See Attorney General Opinion No. M-431 (1969). - Section 2 ofarticle 6822a authorizes .the expenditure ofappropriated funds by “agencies of the state, ” and it seems apparent that, within the terms ofarticle 6822a and the definition of “hazardous position” in article V, section 8ofthe Appropriations Act, the power to expend includes the authority to determine which positions are within the statutorily-defined classification. Whether the administrative head ofa 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 therefore cannot answer this question in general terms. Inthe case ofthe 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 61663to delegate to the Director the “authority tomanage the affairs ofthe prison system, subject to its control and supervision.” Accordingly, we believe that the Director ofthe Texas Department of Corrections is authorized, subject tothe “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 towhich he is assigned. ” Ifthe 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 apsychologist in a state hospital who contracted tuberculosis from apatient as a result ofatwo-hour psychological examination qualified for compensation, since the psychologist’s position was “hazardous” and since his “injury” was

p. 2947The 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 8ofthe 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 8ofthe 1973 General Appropriations Act implements article 6822a. V.T.C.S.. by authorizing payment ofcompensation to any state employee killed or injured while performing the duties ofany “hazardous position. ” Whether the administrative bead of aparticular agency is authorized to determine which positions &all be classified as “hazardous” depends upon the legislation creating the agency. Any employee towhom compensation is paid must be assigned to a “hazardous position” and his injury must directly result from performing the duties of such hazardous position. *Very truly yours,

Attorney General ofTexas

DAVID=. KENDALL. First As$istant

C. ROBERT HEATH, Chairman Opinion Committee

p. 2948