# THEA

AusTxN. **TEXAS**

January 31, 1950

Hon. C. H. Cavness State Auditor Capitol Station Austin, Texas

Dear Sir: Opinion No. V-993

Re: Construction and interpretation ofH.B. 321, Acts 51st Leg., 1949, Ch. 553, p. 1070.

You have requested anopinion regarding the construction and interpretation ofHouse Bill 321, Acts 51st Legislature, 1949, Ch. 553, p. 1070, which is an act making appropriations for the support, maintenance, and improvement ofState hospitals and special schools ofthis State and prescribing certain regulations and restrictions in respect to the expenditure ofthese appropriations. Your request reads as follows:

:‘We shall appreciate your interpretation ofthe following:
” 1. House Bill No. 321, General Provisions, Section 13(b). ‘

. . .No position shall be supplemented
or be paid more than a specific amount as set bythe Board out of any other funds belonging to said institution or the State;

. . .No salary shall be paid to any person unless such person actually discharges assigned duties

. . . . Itis further provided that employees. who
are required by law to render services towards of the State may charge for services rendered to others and retain such portion of said charges as may be allowed by rules and regulations ofthe Board.’

* (a)Does the above legally provide that physicians, surgeons, oculists, dentists, and other professionals as well as barbers, cosmetologists, etc., regularly employed
onfull-time State appropriated salaries by State institutions can render services to institutional employees and other persons during regular institutional working hours, using institutional facilities and supplies, or their own personal supplies, and can legally charge, collect and retain fees for their personal use and benefit?

“(b) Under existing laws, can the State Hospitals and Special Schools, andthe Correctional Schools legally provide hospitalization, medical, surgical, dental and otherHon. C. H. **Cavness,** page 2 (V-993) professional care, and furnish drugs and hospital supplies to institutional employees with or without charge ?

“‘2. Section 20. Emoluments ofBoard Employees. ‘In recognition of salaries paid wftbin institutions and in order to attract and retain qualified supervisory personnel onthe staff ofthe Board, the Board is hereby authorized to allow emoluments to such employees out ofthe funds and facilfties of one or more ofthe institutions in Travis County.’

“(a) Does the above provision legally authorize the Board to furnish housing, provisions, meals, laundry service, etc., for its employees attheir headquarters inthe City ofAustin?

“(b) Could such “Travis County’ funds be used to pay such emoluments to Board employees working at its institutions in Counties other than Travis? w
Ina supplementary letter relating to the above opinion request, you have advised us ofthe following:

‘1. During the past fiscal year (and so far as we know, upto the present time) a superintendent has been orally authorized by amember ofthe staff ofthe Board to perform operations and to otherwise treat institutional employees, andto permit his staff of physicians to do likewise, while regularly employed by the State, using State facilities, drugs, etce., and to charge employees for such services at regular rates. These employees have been hospftalised in the State institutions, with the institution billing the insurance company that provides the State employees’ group insurance for the physician”s fees, and for hospitalization separately (more work done by institutional employees for the personal benefit ofthe physicians). The physicians receive their fees, andthe institutions receive the hospitalization fees,

“2. For some yems past, and atpresent, certain ofthe eleemosynary institutions. with oral sanction of the Board, have permitted physicians, dentists, barbers, cosmetologists to serve employees and others while regularly employed by the State, using State owned facilities, supplies, etc., to charge nominal fees for such services, andto retain such fees (or in some cases a part ofthe fees) for their mown use and benefit.

“3. For some years past, and atthe present time, all ofthe eleemosynary institutions have been, and are,Hon. C. H. Cavness, page 3 (V-993)

providing hospitalization, medical, dental, and other professional care, and drugs and hospital supplies to institutional employees without charge. This is
now for employees who are not covered by group insurance, but ithas happened in some cases that
are covered by such insurance.

“4. One ofthe institutions has employed at the same salary two dentists onthe part-time basis, neither ofwhom spend muchtiie in performing services for wards ofthe State (at present this institution‘has inits emp~~oyone’fulltime dentist). One ofthe part-time dentists for more than two years received certain full emolument allowances specified for fulltime emsyment. At present this part-time dentist is receiving a $90.00 per month ‘provisions allowance.’ The other part-time dentist is receiving no such emoluments.

“5. For a short time past and atpresent, one State employee onthe staff ofthe Board for State Hospitals and Special Schools has been and is furnished with a residence located onthe grounds of one ofthe institutions, and is given all other emoluments provided for the superintendents ofthe various institutions. This employee’s salary is higher than a superintendentUs salary.’
The information which you have furnished us presents the following questions:

1. Can the Board ofState Hospitals and Special @hools authorize physicians, dentists, oculists, barbers, cosmetologists, and other professional personnel regularly employed at State hospitals and special schools to render services to persons other than patients of such institutions, andtowhat extent, if any, can the Board determine the amount anddisposition offees charged for such services?

2. Does theBoard have authority to authorize hospitals and schools under its direction to furnish hospitalization andmedical, dental, and other professional care to institutional employees without +arge?

3. Does the Board have authority to authorize hospitals and schools under its direction to furnish hospitalizationland medical, dent& and other professional care to institutional employees when a Icharge is made ?

4. Does the Board have authority to furnish housing, provisions, board, and laundry to its staff employees inTravis County?Hon. C. H. Cavness, page 4 (V-993)

5. Does the Board have authority to furnish housing, provisions, board, and laundry to its staff employees who are working at institutions located in counties other than Travis?

Before discussing the questions presented, we willnote certain statutes which are pertinent in construing and interpreting House Bill 321, Acts 51st Leg., R.S. 1949, Ch. 553, p01070.

Article 3174, ,Vernon’s Civil Statutes, provides:
“Each eleemosynary institution established by law shall be managed and controlled in accordance with the provisions ofthis title. The general control, management and direction ofthe affairs, property and business of such institutions is vested inthe State Board of Control.”
Article 693, V.C.S., defines the powers ofthe Board of Control inrespect to eleemosynary institutions. This article provides, $n part:,

“The Board of Control shall have power:

“1. To makes rules and regulations for the government ofthe State eleemosynary institutions, not inconsistent with the constitution and laws.

“2. To appoint all officers and employees of such institutions and fix their salaries andwages ~D9Ouu

“7. It shall exercfse a careful supervision over the general operations of such institutions and control the expenditures, anddirect the manner inwhich their revenue shall be disbursed. 0o.ui
House Bill 239. Acts 51st Leg., R.S. 1949, Cb. 157, p0324, codified as Article 3174a, V,C.S., provides that State hospitals, schools, and other institutions which have been known as “Eleemosynary Institutions’” shall hereafter be known and designated as “Texas **State** Hospitals and Special Schools.*

House’Bill 1,Acts 51st Leg., R.S. 1949, Ch. 316, p- 588, codified as Article 3174b, created the Board for Texas State Hospitals and Special Schools. Section 2ofthis act gives to this new board **manage** ment and control ofState hospitals and special schools:

IID

. . Effective September 1, 1949, the control andmanagement of, and all rights, privileges, powers* and duties incident thereto including building, design, and construction ofthe Texas State Hospitals andHon. C. H. Cavness, page 5 (V-993)

Special Schools which are now vested inand exercised by the State Board ofControl shall be transferred to, vested in, and exercised by the Board for Texas State Hospitals and Special Schools ” *

. . .We see that by virtue ofArticle 3174b, V.C.S., the Board for Texas State Hospitals and Special Schools succeeds to the powers ofmanagement and control ofhospitals and schools formerly vested inthe Board of Control. These powers ofmanagement and control
are defined inArticle 693, V.C.S., supra. Therefore, there exists general legislation which sets out powers ofthe new Board in respect tomanagement and control ofthe hospitals and special schools under itsjurisdiction.

Inanswer to question (1)regarding the Board’s authority to authorize physicians, dentists and other employees ofState institutions to render professional services to persons other than patients of such institutions, we must turn to section 13(b) ofH.B. 321, supra, the current Appropriation Act for State hospitals and special schools. This section reads, inpart, as follows:

“The number ofemployees at each institution andthe salary of each shall be fixed by the Board. No position shall be supplemented or be paid more than
a specific amount as set by the Board out of any other funds belonging to said institutions or the state,

. . . No salary shall be paid to any person unless such person actually discharg,es assigned duties

. . . .& is further provided that employees who are required by law to render services to wards ofthe State mav charge for services rendered to others and retain such portion of said Charges as may be allowed by rules and regulations ofthe Board.* (Emphasis ours)

Section 13(b) is apart of ageneral rider inthe current Appropriation Act for State hospitals and special schools. Ifsection 13(b) purports to amend existing law, it is unconstitutional under Article III. Section 35. Constitution ofTexas, which prohibits the enactment of subjects ofg,eneral legislation inanAppropriation Act. Moore v. SheppaPd, 144Tex. 537, 192 S.W.2d 559 (1946).

Inkeeping with the established rule that a construction which renders a statute valid is favored over a\ronstruction which would render the statute invalid, we are ofthe opinion that inenacting section 13(b) the Legislature did not intend to amend existing law.

Itis our opinion that section 13(b) does not purport to authorize and could not authorize superintendents ofState hospitals for theHon. C. H. Cavness, page 6(V-993)

treatment ofmental illnesses to engage inprivate practice, betreatment illnesses private practice,

Section Article V.C.S., amended, cause of Section 1ofArticle 3184, V.C.S., as amended, Acts 48th Leg.,1943, Ch. 65, Sec. 1,p. 82, which provides that: Leg.,1943, provides

“The Superintendent of each State Hospital shall be amarried man, a skilled physician authorized to practice medicine in Texas, and shall have not less than five (5) years experience inthe treatnient ofmental diseases. He shall reside atthe hospital with his family and shall devote his time exclusively to the duties ofhis office, ~~Dew (Emphasis ours)

Since the above quoted section ofArticle 3184 speaks interms of “State Hospitalsa and prescribes that the superinten

### dents shall have experience inthe treatment ofmental diseases,
we conclude that this section ofthe statute applies only to the State fnstitufiona~desigped for the treatment ofmental illnesses and does not apply to ‘other institutions under thejurisdiction ofthe Board for State Hospitals and Special Schools. However, Article 3202c, V.C.S., Acts 51st Leg., R-S., 1949, Ch. 493, p. 914, relating to superintendents of schools for the blind and deaf provides, inpart:

“Sec. 3. The Superintendents ofboth the Texas School for the Blind andthe Texas School for the Deaf shall reside atthe respective school ofwhich he is superintendent and shall devote his time exclusively to the duties ofhis office, oDa*Iy(Emphasis ours)

Inview ofthe particular wording ofArticles 3184 and 3202~. supra, itfollows that the superintendents ofthe State mental hospitals. the Texas School for the Blind, andthe Texas School for the Deaf, could not engage inprivate practice inany professional field inwhich they might be licensed. We do not hold that the dutfes ofthe office of superintendent could never encompass the performance ofprofessional services for others than wards ofthe State, but we hold that these superintendents who are required to devote all oftheir time to the duties oftheir offices could never occupy the position of an independent contractor and thus receive separate compensation for services
so rendered.
There is no statute which requires superintendent ofState institutions other than State mental hospitals andthe schools for the blind andthe deaf to devote their time exclusively to their respective offices. Neither is there any statute which requires employees ofState hospitals and special schools, other than the superintendents heretofore mentioned, to devote their time exclusively to the duties oftheir respective jobs with the State..

Hon. C. H. Cavness, page 7(V-993)

Consequently, you are advised that before as well as after the enactment ofH.B. 321, supra, employees ofState hospitals and special schools (except superintendents towhom Article 3184 andArticle 3202~ apply) could be andmay now be permitted to perform professional services for persons other than wards ofthe State andto make charges therefor, acting in such instances as independent contractors to perform said services. This is in accord with our expression inAttorney General’s Opinion No. V-303, dated July 15, 1947, wherein itwas held that afull-time employee ofthe Highway Department was not prohibited by existing law from working for others inthe capacity of an independent contractor. However, inthis Opinion itwas also pointed outthat the emplovee was obligated to perform fully his duties to the Highway Department~in order to comply with the Appropriation Act requiring that no salary should be paid to any person unless such person actually discharged his assigned duties. Itwas further observed that whether or notthe employee fully performed his assigned duties was amatter for the officials ofthe Highway Department to determine.

The current Appropriation Act for State hospitals and special schools also stipulates that no salary shall be paid to any person unless such person actually discharges assigned duties. Therefore, employees who render professional services to persons other than wards ofthe State must also actually discharge their assigned duties with the State institutions employing them. The responsibility for determining whether such duties have been discharged lies with the Board for State Hospitals and Special Schools.

Section 13(b) ofH.B. 321, supra, after providing that employees ofState hospitals and special schools may charge for services rendered to persons other than wards ofthe State, further stipulates that such employees may “retain such portion of said charges as may be allowed by rules and regulations ofthe Board.” As heretofore observed, we do not construeSection 13(b) as an attempt to change existing law or to enact a subject ofgeneral legislation. We have also; observed that inperforming professional services for persons other than wards ofthe State and in receiving pay therefor, employees of State hospitals and special schools are acting inthe capacity ofindependent contractors. As independent contractors such employees
are entitled to retain all charges for services. H.B. 321, being a general rider, does not change this rule. Therefore, we conclude that the Legislature in enacting Section 13(b) ofH.B. 321 intended to authorize the Board to require employees toturn over to the institution only such portion of charges made for services as will reasonably compensate the institution for the use of its facilities if same are used by the employee inthe rendering ofprofessional services to persons other than wards ofthe State. Accordingly, you are advised that ifan employee ofaState institution renders professional services to persons other than wards ofthe State, he is entitled to retain all the chargesHon. C, H. Cavness, page g-(V-993)

made for such service, except such portion as the Board may prescribe as reasonable compensation for the use ofState facilities.

Ia considering the authority ofthe Board to authorize institutional employees to render professional services to persons who are not wards ofthe State. we have assumed that in some instances these employees will use State-owned facilities in readering such services. **FOP** example, we have assumed that physicians will use offices atthe institution andbarbers will use equipment belonging tothe institution. We think such use ofState-owned facilities by employees is contemplated inthe contract ofemployment between the institution andthese employees. However, we do not advise that physicians could hospitalize their private patients inState hospitals. There are statutory provisions whichlprescribe procedure for admittance tothe various State hospitals. We think that no person exeept an institutional employee (under certain eircumstances hereinafter discussed) is entitled tohospitalization in
aState institution unless such requirements for admittance are met. Therefore, physicians using State-owned facilities inthe treatment ofpatients (other than State wards) are, inour opinion, limited in the use of such facilities, as more particularly pointed out inanswer to question (3), infra.

Question (2) presents the question ofwhether the Board for Texas State Hospitals and Special Schools may lawfully authorize State institutions to provide hospitalization or medical, dental,
or other professional treatment to employees without charge. We think not.
Free hospitalization to the employees is not apart of the perquisites authorized to employees by Sec. 12ofH.B. 321, supra. This Section reads as follows:

“Sec. 12. Perquisites ofEmployees: (a) Under writtan direction ofthe Board, institutional employees may receive such perquisites as the Board **may** by rule ,and regulation prescribe.” Although the word “perquisites” in its literal sense may be broad enough to include medical and other professional treaiznent,
we do not think the Legislature intended inthis instance that the word should be given so broad aconstruction. We think that the Legislature intended the word ‘perquisites” to include only housing, board, provisions, fuel, lights, water, and laundry. We have reached this conclusion from an examination ofprevious appropriation acts for eleemosynary institutions.

For example, S.B. 374, Acts 50th Leg., 1947, Ch. 330, pa 566. 611. contains the following reference to “perquisites”:

. 1 Arts. 3184-3263~. incl., V.C.S.Hon. C. H. Cavness, page 9 (V-993)

“Perquisites ofEmployees. (a) When it is provided that the family of a superintendent, officer, or employee of any of said institutions, are permitted to live at said institution, and are to.be furnished with board, fuel, lights, laundry, water, housing, or any of said items, the word ‘family,’ shall be construed to mean the immediate family of said superintendent, officer, or employee, including himself, wife and legally dependent children.”
Furthermore, inthe 1947 Appropriation Act, under the heading “Salaries,” there are several provisions similar tothe following:

“(Superintendent, Assistant Superintendent and all full-time physicians, phyehiatrists and Dentists to receive housing, provisions,utilities, and laundry for self andfamily.)”
At no place inthe 1947 Act can be found any provision authorizing hospitalization or medical or other professional treatment as apart of an employee’s emolument.

The 1 nary institutions ?45, 1943, and 1941Appropriation Acts for eleemosyare practically identical to the 1947 Act inrespect to enumerating perquisites ofemployees. From this general course oflegislation inwhich theword “perquisites” has been used only in connection with housing,.provisions, board, water, light, fuel, and laundry, we are ofthe opinion that the 51st Legislature inusing the term “perquisites” intended itto include only such items as those enumerated inprevious appropriation enactments and did not intend the term “perquisites” to include hospitalization or medical or other professional treatment.

You are accordingly advised that the Board may not lawfully authorize State hospitals to provide free hosp,italizatioa,, medical
care or dental or other professional treatment to employees.

We next consider question (3) with reference to whether the Board for State Hospitals and Special Schools may authorize hospitals and schools under its direction to provide hospitalization, medical care and other professional treatment to employees where a charge is made.

We have heretofore pointed out that there are statutory provisions which prescribe requirements for admittance to State hospitals and schools. 3 There is nothing inthese statutes to indicate that compliance

2 H.B. 206, Acts 40th Leg., R.S. 1945, Ch. 237, p. 323; H.B. 666, Acts 48th Leg., R.S. 1943, Ch. 398, p. 726; S.B. 402, Acts 47% Leg., R.S. 1941, Ch. 567, p. 939. 3 See statutes listed infootnate 1,page ,8..Hon. C. H. Cavness, page 10(V-993)

with the prescribed requirements for admittance is not mandatory, Therefore, you are advised that ordinarily anemployee of aState hospital or school may not receive hospitalization inthe State institution inwhich he is employed even though a charge therefor is made, unless such employee complies with the statutory requirements for admittance. However, we do not say that under
no condition can such hospitalization be rendered. For example,
we do not hold that under unusual or emergency circumstances an employee is prohibited from receiving hospitalization from the institution. Some ofthe institutions are located several miles from the nearest community. Inthe event an employee should require immediate emergency hospitalization, it is unreasonable to assume that he should be denied facilities inthe institution.

We have been advised that anumber of employees at each institution live onthe premises aBan accomodation to the institution. Some ofthe employees are quartered inbuildings located
a considerable distance from other institutional facilities. Ifone of these employees becomes ill and is confined to his bed, he has no access to other institutional facilities, particularly meals, to which he is entitled. Inaddition he cannot be given adequate attention, Under such circumstances we think itwould be permissible under existing law to allow this employee to use institutional hospital facilities provided a charge is made therefor. Since this employee resides at the institution, the institution can safeguard its employee’s welfare to this extent. We believe that it is the indiscriminate use of institutional hospital facilities by employees that is unauthorized.

Inrespect to other professional treatment, we find no authorization for employees who have not complied with the requirement for admittance to obtain and pay for professional treatment in the State institution inwhich they are employed. The State is not engaged ihthe profession ofmedicine or cosmetology. Onthe other hand, we have concluded that physicians, barbers, and other employees acting as independent contractors, may use, to some extent, institutional facilities inthe treatment ofprivate patients, the use of such facilities being an incident to the contract ofemployment between the institution andthe professional employees. Institutional employees desiring professional attention are not precluded from receiving same from other employees acting as independent contractors but using institutional facilities. The charges made for such services are ofno interest to the institution or the State, except that where institutional facilities are used, the Board is authorized to prescribe reasonable compensation for the use ofState-owned facilities from the professional persons rendering the services.

Accordingly, you are advised that except inunusual circumstances the Board cannot authorize hospitals and schools to furnish hospitalization andprofessional treatment to employees even where a charge is made therefor; however, an employee may receiveHon. C. H. Cavness, page 11(V-993)

piofessional services from another institutional employee who is acting as an independent contractor butwho is to alimited degree using institutional facilities.

Inanswer to question (4) we think that H.B. 321 specifically authorizes employees ofthe staff ofthe Board for State Hospitals and Special Schools to receive emoluments out ofthe funds and facilities of one ofthe institutions inTravis County. Section 20, H.B. 321, reads as follows:

!‘Emoluments ofBoard Employees: Inrecognition of salaries paid within institutions and in order to attract and retain qualified supervisory personnel on the staff ofthe Board, the Board is hereby authorized to allow emoluments to such employees out ofthe funds and facilities of one or more ofthe institutions inTravis Comity.*
The answer to question (5) is also found inthe above quoted section. This section does not distinguish between Board employees working inTravis County and those working inother counties. Under this section itappears immaterial where the Board employee is working. Therefore, we advise you that the Board is authorized to allow emoluments out offunds and facilities of one or more ofthe institutions inTravis County to Board employees who are working at institu-~ tions outside of Travis County.

SUMl&RY

The Board for Texas State Hospitals and Special Schools can authorize physicians, dentists, barbers, and other professional employees athospitals and schools under the Board’s supervision to render professional services to persons other than wards ofthe State, provided such employees fully discharge assigned duties to the State. Inrendering such services the employee does
so inthe capacity of an independent contractor. IfStateowned facilities are used inperforming such services, the Board is authorized to determine and collect a reasonable charge as reimbursement to the State.
The Board has no authority to authorize hospitals and schools under its direction to render free hospitalization or medical and other professional services to employees of such institutions. Except inunusual eiroumstances, such
as in case of an emergency, employees ofStati hospitals and special schools may not be hospitalized inone oftheseHon. C. H. Cavness, page 12(V-993)

institutions even though a charge is made.
The Board may give emoluments to its staff employees out ofthe funds and facilities of any of the institutions inTravis County under the Board”s supervision. Emoluments out ofthe funds and facilities ofState hospitals and special schools in Travis County may be given to any employee ofthe Board, even though the employee is working at an institution outside of Travis County.

Yours very truly,

PRICE DANIEL Attorney General

APPROVED:
Charles D. Mathews Executive Assistant 

# ByT!-;?+-&

Pat T. Peyton, JrAssistant

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