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# TheAttorney General of

# Texas
November 24, 1981 MARK WHITE AttorneyGeneral

Supreme Court Bullding P.0. Box 12546 A&in. TX. 76711 5121475.2501 Telex 9101674-1367 Telecomer 512M750266

1607 Main St.. Suite 1400 Dallas. TX. 75201 2141742-6944

4624 Alberta Ave.. Suite 160 ElPaso. TX. 79905 91w.33.3164

1220 Oallas Ave.. Suite 202 Houslon, TX. 77002 7131650-0666

606Broadway.Suite 312 Lubbock. TX. 79401 6061747.5238

43W N.Tenth. Suite B McAlle”. TX. 76501 512!662-4547

200 Mam Plaza. Suite 400 San Anlonw,. TX. 76205 5121225.4191 Honorable DanW.Heard Criminal District Attorney Calhoun County Courthouse Port Lavaca, Texas 77979 Opinion No. NW-393 Re: Payment of COUllty hospital medical staff for treatment of indigent patients at the hospital Dear Mr. Heard: Youhave requested our opinion on the following question: Is it proper for acounty or acounty hospital to pay doctors on the medical staff of the county hospital for treating indigent patients at the hospital? SCamtori provisions governing county hospitals are found in V.T.C.S. article 4470, et. seq. General management and control of acounty hospital is vested in aboard of managers under article 4480. V.T.C.S.. which provides, in part, as follows:

The board sball also appoint a staff of visiting physicians who shall serve without pay from the countyI and who shall visit and treat hospital patients at the request either of the managers or of the superintendent. Said board shall fix the salaries of the superintendent and all other officers and employees within the limit of the appropriation madetherefor by the commissioners court. andsuch salaries shall be compensation in full for all services rendered. The statutory scheme of article 4480 thus contemplates two potential classes of physicians whomaybe on the medical staff of a county hospital: physicians who are employees of the hospital and visiting physicians. With regard to the former class, article 4480 makes cLe;lr that their salaries art cull compensation for all services

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rendered, regardless of the financial status of the patients receiving CllCservices. In Attorney General Opinion O-2422 (1940), this office held that the board of managers of a county hospital could not allow claims of physicians andsurgeons for services rendered to charity patients in a hospital. This opinion has not been overruled by this office or modified by the legislature. Webelieve it is dispositive of your qucscion. **It** has been suggested that the Professional Services Procurement Act. article 664-4. V.T.C.S., impliedly repeals article 4480, V.T.C.S., andrequires that acounty pay reasonable fees~to doctors on the medical staff. Article 664-4. V.T.C.S.. provides in pertinent part: Sec. 2. For purposes of this Act the term

‘professional services’ shall nean those within the scope of the practice of accounting. architecture. optometry, medicine or professional engineering as defined by the laws of the State of

‘Texas or those performed by JnY licensed architect, optometrist, physi~cian, surgeon, certified public acccuntant or professional ong ’ineer in connection with his professional employment or practice.

sec. 3. No state agt?ncy, political subdivision, county, municj~pality, district, authority or publicly-owned utility of the State of Tcsas shall mtikcany contr:lct for, or cngilge cite professional services 0i. 3n~ 1icensed physicinn, optometrist, surgeon, architect, cerl iTied public accountnnc or registered enpilw*r, or any group or association ch?r.$of, selt!c~tcd u,, the basis of competitive bids submitted fur such contract or for such services to be performed. but shall select and award such contracts andenenge such scrviccs on the basis of demonstrated competence and qualifications for the type of professional services to be performed and at fair and reasonable prices, as long as professional fees are consistent with and not higher than the.published recommended practices and fees of the various applicnble professional associations and do not exreed the maximum provided byany state lav. ’ I

.’llonornhle I)~IIIW.Ilr:ard- PnRc I (Mu-‘I’)3t

Contracts entered into in vi~~latio,n oi this statute arc void as contrary to public policy. V.T.C.S. art. hb4-4, 54. In our opinion, the put-pose of this statute was to ensure that competitive bidding statutes would wt beapplied to the employment of persons in the enumerated professions. The emergency clause ciearly expresses this intent:

Sec. a. The fact that tile selection of certified public acco ”ntants. architects, physicians. optometrists. surgeons and professional engineers on the basis of the lowest bid places a premium on incompetence and is the most likely procedure for -selecting the least able or qualified and the most incompetent practitioner for the performance of services vi,tally affecting the health, welfare and safety of the public and that, in spite of repeated expressions of the legislature excepting such professional services from statutes providing for competitive bidding procedures, somepublic officers continue to apply competitive bidding procedures to the selection of such professional personnel, cr‘eaten an emergency of the greatest public importance to the health. safety andwelfare of the people of Texas and an imperative public necessity requiring that the Consritutional Rule that bills be read on three several days in each House bc suspended. and such Rule is hereby suspended, and this Act shnil take eii-,tct from ;~ndafter its pnssngc. and it is so enacted. Acts 1971, h.‘nd I.ef., ch. 38, $8, at 72. Thec:;;erRt’ncy cLnuscnay be considered in ascertaining the legi~slativc intent .ZXpr~SSed in a statute. Houston Belt Terminai &Ry. Co. v. Clark, 143 S.W.Zd 373 (Tex. 1940). Article htG+-4. V.T.C.S.. did not impliedly repeal every statute authorizing the appointment of a physician to a pclblic service position carrying little or no compensation. See. e.g., ?ledical Practices Act, 552.05, 2.06, Acts 1981, 1st C.S., ch. 1, §l (qualifications nnd compensation of members of Board of tledicnl I:.xamiuers). Section 3of article bh4-4, V.T.C.S.. clearly states that professional Fees must not “exceed the maximumprovided by any state law.” Article 44RO, V.T.C.S., pl-ov:ides that visiting physicians shall scrvc withalt p%~yirom the county. ‘l‘tlnl~,the provisions of article 664-4, V.T.C.S., 2nd article i4t40, v.1‘.c:.s., m;,” hr cvnstrued in harwny

. hrtirlc 664-4, V.T.C.S., prcvtwts puhiic officials from cnRag:ing tt,t: :,t.ltnl professional SL~TV ic.vs aw crmkp<‘t

itive hids andHonorable DanV. Heard - Page 0 (MU-393)

restricts their discretion in setting compensation by requiring reasonable fees. It has nobearing where the legislature has enacted a statute setting or denying compensation for physicians and other professionals. Weconclude that the board of managers of acounty hospital may not payphysicians for treating indigent patients at the hospital. SUMMARY Article 4480. V.T.C.S., prevents a county from paying doctors on the medical staff of the county hospital for treating indigent patients at the hospital. 

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Attorney General of Texas JOHNW.FAINTER,JR. First Assistant Attorney General RICHARDE.GRAYIII Executive Assistant Attorney General Prepared bySusan L. Garrison Assistant Attorney General APPROVED: OPINlONCOMMITTEE SUSJllII.Cnrrison, Chairman Jon I!ible Rick Cilpin JimMoe11inger firuse Youngblood

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