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 

of H.B. 321, Acts 51st Leg., 1949, 

Ch. 553, p. 1070. 

You have requested anopinion regarding the construction and interpretation of House Bill 321, Acts 51st Legislature, 1949, 

Ch. 553, p. 1070, which is an act making appropriations for the support, maintenance, and improvement of State hospitals and special 

schools of this State and prescribing certain regulations and restrictions in respect to the expenditure of these appropriations. Your request reads as follows: 

:‘We shall appreciate your interpretation of the 

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 by the 

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 . . . . It is further provided that employees. who 

are required by law to render services to wards 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 of the Board.’ 

* (a) Does the above legally provide that physicians, 

surgeons, oculists, dentists, and other professionals as 

well as barbers, cosmetologists, etc., regularly employed 

on full-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, and the Correctional Schools legally 

provide hospitalization, medical, surgical, dental and other 
Hon. 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 of Board Employees. ‘In recognition of salaries paid wftbin institutions and in order to attract and retain qualified 

supervisory personnel on the staff of the Board, the 

Board is hereby authorized to allow emoluments to 

such employees out of the funds and facilfties of one 

or more of the institutions in Travis County.’ 

“(a) Does the above provision legally authorize the Board to furnish housing, provisions, meals, 

laundry service, etc., for its employees at their headquarters in the City of Austin? 

“(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 

In a supplementary letter relating to the above opinion 

request, you have advised us of the following: 

‘1. During the past fiscal year (and so far as 

we know, up to the present time) a superintendent has 

been orally authorized by a member of the staff of the 

Board to perform operations and to otherwise treat 

institutional employees, and to 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 of the physicians). 

The physicians receive their fees, and the institutions 

receive the hospitalization fees, 

“2. For some yems past, and at present, certain 

of the 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, and to retain such fees (or in some cases a 

part of the fees) for their mown use and benefit. 

“3. For some years past, and at the present time, 

all of the 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 it has happened in some cases that 

are covered by such insurance. 

“4. One of the institutions has employed at 

the same salary two dentists on the part-time basis, 

neither of whom spend muchtiie in performing services for wards of the State (at present this institution‘has inits emp~~oyone’fulltime dentist). One of the 

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 at present, one 

State employee on the staff of the Board for State 

Hospitals and Special Schools has been and is furnished with a residence located on the grounds of one 

of the institutions, and is given all other emoluments 

provided for the superintendents of the 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 of State 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, and to what extent, if any, can the Board determine 

the amount and disposition of fees charged for such services? 

2. Does the Board have authority to authorize hospitals 

and schools under its direction to furnish hospitalization and medical, 

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 in Travis 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, p0 1070. 

Article 3174, ,Vernon’s Civil Statutes, provides: 

“Each eleemosynary institution established 

by law shall be managed and controlled in accordance 

with the provisions of this title. The general control, 

management and direction of the affairs, property 

and business of such institutions is vested in the State 

Board of Control.” 

Article 693, V.C.S., defines the powers of the Board of 

Control in respect to eleemosynary institutions. This article provides, $n part:, 

“The Board of Control shall have power: 

“1. To makes rules and regulations for the 

government of the State eleemosynary institutions, 

not inconsistent with the constitution and laws. 

“2. To appoint all officers and employees of 

such institutions and fix their salaries and wages ~ D 9 Ouu 

“7. It shall exercfse a careful supervision over 

the general operations of such institutions and control the expenditures, and direct the manner in which 

their revenue shall be disbursed. 0 o .ui 

House Bill 239. Acts 51st Leg., R.S. 1949, Cb. 157, p0 324, 

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 2 of this act gives to this new board management and control of State hospitals and special schools: 

II D . . Effective September 1, 1949, the control 

and management of, and all rights, privileges, powers* 

and duties incident thereto including building, design, 

and construction of the Texas State Hospitals and 
Hon. C. H. Cavness, page 5 (V-993) 

Special Schools which are now vested in and exercised by the State Board of Control shall be 

transferred to, vested in, and exercised by the 

Board for Texas State Hospitals and Special Schools 

” * . . . 

We see that by virtue of Article 3174b, V.C.S., the Board 

for Texas State Hospitals and Special Schools succeeds to the powers 

of management and control of hospitals and schools formerly vested 

in the Board of Control. These powers of management and control 

are defined in Article 693, V.C.S., supra. Therefore, there exists 

general legislation which sets out powers of the new Board in respect 

to management and control of the hospitals and special schools under 

its jurisdiction. 

In answer to question (1) regarding the Board’s authority 

to authorize physicians, dentists and other employees of State institutions to render professional services to persons other than patients 

of such institutions, we must turn to section 13(b) of H.B. 321, supra, 

the current Appropriation Act for State hospitals and special schools. 

This section reads, in part, as follows: 

“The number of employees at each institution 

and the 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 of the State mav 

charge for services rendered to others and retain 

such portion of said Charges as may be allowed by rules 

and regulations of the Board.* (Emphasis ours) 

Section 13(b) is a part of a general rider in the current 

Appropriation Act for State hospitals and special schools. If section 

13(b) purports to amend existing law, it is unconstitutional under Article 

III. Section 35. Constitution of Texas, which prohibits the enactment of 

subjects of g,eneral legislation in an Appropriation Act. Moore v. SheppaPd, 144 Tex. 537, 192 S.W.2d 559 (1946). 

In keeping 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 of the opinion that in enacting section 

13(b) the Legislature did not intend to amend existing law. 

It is our opinion that section 13(b) does not purport to authorize and could not authorize superintendents of State hospitals for the 
Hon. C. H. Cavness, page 6 (V-993) 

treatment treatment of mental illnesses illnesses to engage in private private practice, practice, because of Section Section 1 of Article Article 3184, V.C.S., V.C.S., as amended, amended, Acts 48th 

Leg.,1943, Leg.,1943, Ch. 65, Sec. 1, p. 82, which provides provides that: 

“The Superintendent of each State Hospital 

shall be a married man, a skilled physician authorized to practice medicine in Texas, and shall have 

not less than five (5) years experience in the treatnient of mental diseases. He shall reside at the 

hospital with his family and shall devote his time 

exclusively to the duties of his office, ~ ~ D ew 

(Emphasis ours) 

Since the above quoted section of Article 3184 speaks 

in terms of “State Hospitalsa and prescribes that the superintendents shall have experience in the treatment of mental diseases, 

we conclude that this section of the statute applies only to the State 

fnstitufiona~desigped for the treatment of mental illnesses and does 

not apply to ‘other institutions under the jurisdiction of the 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, in part: 

“Sec. 3. The Superintendents of both the Texas 

School for the Blind and the Texas School for the Deaf 

shall reside at the respective school of which he is 

superintendent and shall devote his time exclusively 

to the duties of his office, o D a *Iy (Emphasis ours) 

In view of the particular wording of Articles 3184 and 

3202~. supra, it follows that the superintendents of the State mental 

hospitals. the Texas School for the Blind, and the Texas School for 

the Deaf, could not engage in private practice in any professional 

field in which they might be licensed. We do not hold that the dutfes 

of the office of superintendent could never encompass the performance 

of professional services for others than wards of the State, but we hold 

that these superintendents who are required to devote all of their time 

to the duties of their 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 of State 

institutions other than State mental hospitals and the schools for the 

blind and the deaf to devote their time exclusively to their respective 

offices. Neither is there any statute which requires employees of State 

hospitals and special schools, other than the superintendents heretofore mentioned, to devote their time exclusively to the duties of their 

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 of H.B. 321, supra, employees of State hospitals 

and special schools (except superintendents to whom Article 3184 

and Article 3202~ apply) could be and may now be permitted to perform professional services for persons other than wards of the 

State and to make charges therefor, acting in such instances as 

independent contractors to perform said services. This is in accord with our expression in Attorney General’s Opinion No. V-303, 

dated July 15, 1947, wherein it was held that a full-time employee 

of the Highway Department was not prohibited by existing law from 

working for others in the capacity of an independent contractor. However, in this Opinion it was also pointed out that 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. It was further observed that whether or not the 

employee fully performed his assigned duties was a matter for the 

officials of the 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 of the 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) of H.B. 321, supra, after providing that employees of State hospitals and special schools may charge for services 

rendered to persons other than wards of the State, further stipulates 

that such employees may “retain such portion of said charges as may 

be allowed by rules and regulations of the Board.” As heretofore observed, we do not construeSection 13(b) as an attempt to change existing law or to enact a subject of general legislation. We have also; 

observed that in performing professional services for persons other 

than wards of the State and in receiving pay therefor, employees of 

State hospitals and special schools are acting in the capacity of independent 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) of H.B. 321 intended to authorize the Board to require employees to turn 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 in the rendering of professional services to persons other 

than wards of the State. Accordingly, you are advised that if an employee of a State institution renders professional services to persons 

other than wards of the State, he is entitled to retain all the charges 
Hon. 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 of State facilities. 

Ia considering the authority of the Board to authorize 

institutional employees to render professional services to persons 

who are not wards of the 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 at the institution and barbers will use equipment 

belonging to the institution. We think such use of State-owned 

facilities by employees is contemplated in the contract of employment between the institution and these employees. However, we 

do not advise that physicians could hospitalize their private patients 

in State hospitals. There are statutory provisions whichlprescribe 

procedure for admittance to the various State hospitals. We think 

that no person exeept an institutional employee (under certain eircumstances hereinafter discussed) is entitled to hospitalization in 

a State institution unless such requirements for admittance are met. 

Therefore, physicians using State-owned facilities in the treatment 

of patients (other than State wards) are, in our opinion, limited in 

the use of such facilities, as more particularly pointed out in answer to question (3), infra. 

Question (2) presents the question of whether 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 a part of 

the perquisites authorized to employees by Sec. 12 of H.B. 321, supra. 

This Section reads as follows: 

“Sec. 12. Perquisites of Employees: (a) Under 

writtan direction of the 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 in this instance that the word 

should be given so broad a construction. 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 of previous 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 of Employees. (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, in the 1947 Appropriation Act, under the 

heading “Salaries,” there are several provisions similar to the following: 

“(Superintendent, Assistant Superintendent 

and all full-time physicians, phyehiatrists and Dentists to receive housing, provisions,utilities, and 

laundry for self and family.)” 

At no place in the 1947 Act can be found any provision 

authorizing hospitalization or medical or other professional treatment as a part of an employee’s emolument. 

The 1 

nary institutions ? 

45, 1943, and 1941 Appropriation Acts for eleemosyare practically identical to the 1947 Act in respect 

to enumerating perquisites of employees. From this general course 

of legislation in which the word “perquisites” has been used only in 

connection with housing,.provisions, board, water, light, fuel, and 

laundry, we are of the opinion that the 51st Legislature in using the 

term “perquisites” intended it to include only such items as those 

enumerated in previous 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 in these 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 in footnate 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 an employee of a State 

hospital or school may not receive hospitalization in the State institution in which 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 of the institutions are located several miles from 

the nearest community. In the event an employee should require 

immediate emergency hospitalization, it is unreasonable to assume 

that he should be denied facilities in the institution. 

We have been advised that a number of employees at 

each institution live on the premises aB an accomodation to the institution. Some of the employees are quartered in buildings located 

a considerable distance from other institutional facilities. If one 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. In addition he cannot be given adequate attention, Under such circumstances we think it would 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. 

In respect 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 in which they are employed. The State is not engaged ih the profession of medicine or cosmetology. On the other 

hand, we have concluded that physicians, barbers, and other employees 

acting as independent contractors, may use, to some extent, institutional facilities in the treatment of private patients, the use of such 

facilities being an incident to the contract of employment between the 

institution and the 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 of no 

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 of State-owned facilities from the professional persons rendering the services. 

Accordingly, you are advised that except in unusual circumstances the Board cannot authorize hospitals and schools to furnish hospitalization and professional treatment to employees even 

where a charge is made therefor; however, an employee may receive 
Hon. C. H. Cavness, page 11 (V-993) 

piofessional services from another institutional employee who is 

acting as an independent contractor but who is to a limited degree 

using institutional facilities. 

In answer to question (4) we think that H.B. 321 specifically authorizes employees of the staff of the Board for State 

Hospitals and Special Schools to receive emoluments out of the 

funds and facilities of one of the institutions in Travis County. Section 20, H.B. 321, reads as follows: 

!‘Emoluments of Board Employees: In recognition of salaries paid within institutions and in order to 

attract and retain qualified supervisory personnel on 

the staff of the Board, the Board is hereby authorized 

to allow emoluments to such employees out of the funds 

and facilities of one or more of the institutions in Travis 

Comity.* 

The answer to question (5) is also found in the above quoted 

section. This section does not distinguish between Board employees 

working in Travis County and those working in other counties. Under 

this section it appears immaterial where the Board employee is working. Therefore, we advise you that the Board is authorized to allow 

emoluments out of funds and facilities of one or more of the institutions in Travis 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 at hospitals and schools 

under the Board’s supervision to render professional 

services to persons other than wards of the State, provided such employees fully discharge assigned duties to 

the State. In rendering such services the employee does 

so in the capacity of an independent contractor. If Stateowned facilities are used in performing 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 in unusual eiroumstances, such 

as in case of an emergency, employees of Stati hospitals 

and special schools may not be hospitalized in one of these 
Hon. C. H. Cavness, page 12 (V-993) 

institutions even though a charge is made. 

The Board may give emoluments to its staff 

employees out of the funds and facilities of any of 

the institutions in Travis County under the Board”s 

supervision. Emoluments out of the funds and 

facilities of State hospitals and special schools in 

Travis County may be given to any employee of the 

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 

WEG:v