THE ,!TTORNEY GENERAL 

### OFTEXAS

Hon. D. C. Greer Opinion No. 

### O-5355 State Highway Engineer Re: Workmen’s Compensation InsurTexas Highway Department ante for members of Texas State iiustin, Texas Guard as provided by Senate Bill 

### 135,48th Legislature; sufficiency of physical examinations; the cost of same; identification of forms and records used in administering the Act; effect of Section 11 of Article 

### 8306,Vernon’s Annotated Civil Statutes; rights of supernumeraries; authority of Texas Highway Department to employ private adjusters and to hire additionDear Sir: al help to administer the Act.

Wehave your recent letter asking eight questions concerning Senate Bill 

### 135of the 48th Legislature, which provides Xorkmen’s Compensation Insurance for members of the Texas State Guard. The portions of your letter dealing with the separate questions will be quoted and answered separately.

Question (1) “Section 2, sub-section 2 reads in part as follows: I’‘Member’ shall mean every person in the Texas Defense Guard0 Provided that no person shall be classified as a
‘Member’ under this z.-:t nor be eligible to any compensation beneffts under the terms and provisions of this Act until he shall have submitted himself first to a physical examination by a regularly licensed physician or surgeon, designated or accepted by the Texas Defense Guard to make such an examination, and until, as a result of such examination, all physical defects existent at the time of the examination have been noted and recorded. t

“Section 11 is in part as follows:

‘IrIt shall be the duty of the Adjutant General’s Department to preserve as part of its. permanent records said Doctor’s Certificates and said Enlistment Forms to which the State Highway Department will have access.’

“Is a special examination intended, or are we to accept the rather superficial examination given at the timeHon. D. C. Greer, page 2 

### (O-5355)

of enllstment?‘~ You will note that this Act operates prospectively and not retrospectively. Section 

### 3provides in part:

!‘After the effective date of this law any member, as defined in this law, who sustains an injury in the course of duty shall be paid compensation as hereinafter provided.” Insurance is not provided for injuries received prior to the effective date of the set. The purpose of the physical examination is t> record the defects extant when the guardsman qualifies for insurance. It is therefore, our opinion that a physical examinlti.on made on enlistment prior to the effective date of the Act is not sufficient to qualify a guardsman for insurance under the Act.

Question (2) “If special examination is to be given, who is to bear cost of same?” Section 15 authorizes your department “to expend for all costs, administrative expense (other than salaries), charges, benefits, and awards, any funds appropriated for that purpose.” Section 

### 18appropriates $15,000.00 “to carry out the provisions of this Act from its effective date until September 1, 1943.“

.

But, you will note that a guardsman does not qualify for insurance merely by being in the guard. He must also submit himself to the required physical examination if he wishes to obtain the benefits of the Bet

. The Act does not provide that it is the duty of your department to see that each guardsman qualifies. It is, therefore, our opinion that the cost of the qualifying physical examination is not a proper administrative cost or expense to be paid out of the @15,000.00 appropriation, but should be borne by the guardsman who seeks to qualify.

clue&ion (3) “Since wewill be administering the benefits to our own employees, and those to the Guardsmen through the same Division of the Highway Department there will be much cause for confusion in keeping the records separated unless special precautions are taken to clearly set these two functions apart. This confusion will be parMcularly prevalent among doctors in making their reports and submitting bills for services. There will also likely be some difficulty on the part of the Industrial iiccident Board in separatisn unless special designation is given to the newwork. In order to avoid this anticipated confusion wewould like to set up the administration of Senate Bill 

### 135under the name of Texas State Guard Compensation Administration.h

Hon. D. C. Greer, page 3 

### (O-5355)

“Is there any legal reason why this cannot be done?” By the phrase “‘set up the administration” we understand you to mean the identification of forms and records, Wesee no legal reason to prevent your department from marking or printing the above woted name on all forms and records used in the administration of the Act.

Question (4) “If permissible, are there any special requirements to be met in order to so operate?” Wefind no extra or additional requirement that arises merely because your department uses for purposes of identification the name Texas State Guard Compensation Administration.”

Question (5) “Section 11, Article 8306, Acts 1927, tith Legislature, Page 41, Chapter 28, Section 1 was adopted by reference. This section provides ‘While the incapacity for work resulting from the injury is partial, the association shall pay the injured employee aweekly compensation equal to sixty per cent of the difference between his average weekly wages before the injury and his average weekly earning city. ’ capacity during the existence of such partial capa-

“Since the compensation rate for guardsmen is fixed at $20 per week, without any relationship to nor being affected by the rate of earnings (See Section 2, sub-section 6) is Section 11, Article 8306 effective under Senate Bill 135?” It is our opinion th& Section 11 of Article 8306, Vernon’.s Annotated Civil Statutes, is not rendered ineffective by Section 2, subsection 6 of Senate Bill 135’ and that the “definite and fixed sumof $20.00 per week” pertains to total incapacity. It is also our opinion that “average weekly wages before the injury” as used in such Section 11, Senate Bill 135 “such wages as would means in the language of sation rate of $20.00 per week.” produce a maximumcompenQuestion (6) “Wehave been advised by the Adjutant + General’s Department that numerical limits have been placed on the various units, for instance a rifle company maynot have more than 75 enlisted members. Some of these companies have ‘waiting lists’ or applicants that cannot be accepted because the company is already at full strength. These Isupernumeraries’ , as they are called, are allowed to attend and take full part in the training program, just as the regular members do. the shoulder patches. They maywear the uniform, but not They use the guard’s equipment, but none of it is actually issued to them, as it is to members.

### hn. D. C. 

### Greer, page4 (O-5355)

-__. -- __- “_.-- 

### cut enlistment Dane men

## aa the: Thevare not eiven aphysical examination nor d0 tl:.eyfill

__ =-_2s. Aseparate record is kept ;li these ir attendance.for training. In reilit:: &: ,.:rereservists under full training.

“12 -TWopinion are they entitled to benef? 2a72;~ Se&t: 3ill. 

### 135?" 

## p3viaIn ;sur02inion the WsupernumerarlesU to the **bandl ’** **;s** 

### of the Act. are no? ev.tf+,l~a Department !.s 

### .'. '~isticr (7) %ec+ion 15 sz;,‘s, a The h-egg-.d&horized to expend for all costs, adralnlstrzive expense (other than salaries), charges; benefits, and ~!?rds any

## fundsa?proprlated for that purpose.’ It ‘rs the general **3** 

### AAce edong insurance companies to have regularly con- .-situtea claims adjustment service coinpanies to r’,i,m*d of .Giair work of investigatic;l, adjustment, et cetera, of cl:‘r,ia~supon a fee basis.

“Dowehave .luthority to use such.servlces, ad pay fees for sameunaar the limitations of Section 157” Id 

### 34Texas Jurisprudence, page 459, it is said:

“It is i genarsl rule that public duties mustbe perfollned andgovernmental powers exercised by the -ofricer or k&y design&ea by law--that thejr cannot he delegated to others. This is particularly true of duties which are~jndicial in their nature, or discretion, andwhich are regarded .zsapart of the public trust ass-Jn.ed.

. . .” Also .inI?aill v.. State, 129 S.W. 

### 630,the court quotes 3’2.sprroves this language:

“The.general rule is that ‘We performance of public duties cannot be delegated by apublic officer, ?.ndutdess there is a clear expression in the statute to the contrary it ~31 be presumed that the Legislature intended that pub3.1~duties which’ require the exercise of .dlscYetion should tieperfotimed.by public offlcers.n Webster.‘s Dictionary defines the word “ad~just” when used in connection with insurance as meaning, “To determine.the amountto be paid under apolicy in settlement of a1.0s~~and an ‘8adjuster1’ as “one who&ajasts.”

In our opinion.such functions re@lre the exercise of dis>+etion.ana your department has no authority~ to use andpay fees for such services of “claims adjustment service companies.’Hon. D. C. Greer, page 5 (O-5355)

However, In the case of Terre11 v. Sparks, State Treasurer, 135 S.W. 519, our Supreme Court considered an Act providing an appropriation to be expended under the direction of the .-ttorney General “for the purpose of enforcing any and a11 laws of the State of Texas, and for the purpose of paying anyland all ;:*cessary expenses in bringing suits or paying expznses in prosecuting sameoI’ The court held that such Act authorized the Attorney General to contract with an attorney to perform certain services under the direction of the Attorney General. The Treasurer was ordered to honor the warrant issued to such attorney.

It is further our opinion that your department under the quoted Frovision of the iict may contract with such claims Ldjustnebt companies for the performance of ministerial services suoh as the investigation and reporting of facts in connection ;l-th claims, and the fee for such services maybe paid out .of the appropriation.

Question (8) “The Departmental ;ippropriation Bill provxes, !iill revenues, fees, .i and gr,ants in aid received for credit to the State Highwa:; Fund during the biennium beginning September 1, 1943, together with the balance of such funds on hand at the beginning of each year of the biennium, are hereby appropriated for the payment of the specific appropriations herein made for the State Highway Department and tb; Department of Public Safety, and for the establishment of a system of State Highways and the planning, constri.~.~::tlon, dnd m;lnt,nance thereof as contemplated and set fori;)? in Chbp,ter 1, Titie II6 and Chapter 186, General Laws of “,.,:,aRegular Session of tile Thirty-ninth Legislature, and illiietidmeti;athereto. ’

“Do we have ailthority to hire additional help, if any be required, to administer the Act, and pay salaries of sl;m%from regular Highway Department funds?” In our c;:!inlon you do not have authority to hire additional help to administer the Act and pay the salaries of such employees from regular Highway Department funds. The last paragraph of the Dapartmental Appropriation Bill that you mentioned reads In part as follows:

“There is hereby appropriated for each year of the Blennium beginning September 1, 1943 and ending August 31, 1945, the sumof Fifty Thousand ($50,000) Dollars for the uses and purposes of,,and carrying out the provisions of Senate Bill No. 135, Hcts of the Regular Session of the 48th Legislature no salaries shall be paid from this approprlation.

. . .‘IHon. D. C. Greer, page 

### 6 (O-5355)

Trusting this opinion sufficiently answers your inquiries, we are Yours very truly ATTORNEY

GENERAL

OFTEXAS 

### Byis/Donald Gay Donald Gay, Assistant APPROVED

JUL 1, 

### 1943 /s/ Gerald C. Mann ATTORNEY

GENXRAL

OFTEXAS APPROVED:OPINIONCOMMITTEE BY: BWB,CHAIFWAN DG:db:wb