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. 

We have your recent letter asking eight questions concerning Senate Bill 135 of 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 

Guar d 0 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 time 
Hon. D. C. Greer, page 2 (O-5355) 

of enllstment?‘~ 

You will note that this Act operates prospectively 

and not retrospectively. Section 3 provides 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 18 appropriates $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 we will 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 new work. In order to avoid this anticipated confusion we would like to set up the administration of Senate 

Bill 135 under 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, We see 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?” 

We find 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 a weekly 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 sum of $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 maximum compenQue st ion (6) “We have been advised by the Adjutant + 

General’s Department that numerical limits have been placed 

on the various units, for instance a rifle company may not 

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. 

The se I supernumeraries’ , 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 may wear 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, page 4 (O-5355) 

-__. -- __- “_.-- 

cut enlistment Dane 

men aa the: 

Thev are not eiven a physical examination nor d0 tl:.ey fill 

__ =-_ 2s. A separate record is kept ;li these 

ir attendance.for training. In reilit:: &: 

,.:re reservists under full training. 

“12 -TW opinion are they entitled to benef? 

2a 72;~ Se&t: 3ill. 135?" 

p3viaIn ;sur 02inion the WsupernumerarlesU 

to the bandl’;s of the Act. 

are no? ev.tf+,l~a 

.'. '~isticr (7) %ec+ion 15 sz;,‘s, a The Department !.s 

h-egg-.d&horized to expend for all costs, adralnlstrzive 

expense (other than salaries), charges; benefits, and ~!?rds 

any funds a?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~s upon a fee basis. 

“Do we have .luthority to use such.servlces, ad pay fees 

for same unaar the limitations of Section 157” 

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

“It is i genarsl rule that public duties must be perfollned and governmental 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, and which are regarded 

.zs a part of the public trust ass-Jn.ed. . . .” 

Also .in I?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 a public officer, ?.nd utdess 

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 

tie perfotimed. by public offlcers.n 

Webster.‘s Dictionary defines the word “ad~just” when 

used in connection with insurance as meaning, “To determine.the 

amount to be paid under a policy in settlement of a 1.0s~~ 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 and pay 

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 any land all 

;:*cessary expenses in bringing suits or paying expznses in prosecut ing same o I’ 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 may be 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 “,.,:,a Regular Session of tile Thirty-ninth Legislature, and 

illiietidmeti;a thereto. ’ 

“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 sum of 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. . . .‘I 
Hon. D. C. Greer, page 6 (O-5355) 

Trusting this opinion sufficiently answers your inquiries, we are 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By is/ Donald Gay 

Donald Gay, Assistant 

APPROVED JUL 1, 1943 

/s/ Gerald C. Mann 

ATTORNEY GENXRAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: BWB,CHAIFWAN 

DG:db:wb