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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 

78711 

Acts of the 59,th Le 

Austin, Texas Regular Session, t 

islature, 

19 5, (General 

Appropriation Act) relating to 

payment for injuries for state 

employees injured while performing 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 treatment 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 necessary 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. Without 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 

under the circumstances 7 

ree or amount of loss 

without 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, mental 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 thereof 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 purpose 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, unless such optometrist is a regularly licensed 

physician or surgeon under the laws of this 

State. 

,l 1, . . . 

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 principles, it cannot be treated as a mechanism 

alone. Its vitality as an element of the 

human body cannot be overlooked. Other organs 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, enter 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 payable 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 replacement 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 performing 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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