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Mr. William 3. Burke      Opinion NO. c-706
Executive Director
State Board of Control    Re:   Construction of Section 8 of
P. 0. Drawer GG                 Article V of House Bill 12,
Capitol Station                 Acts of the 59,thLe islature,
Austin, Texas    78711          Regular Session, 19t5, (General
                                Appropriation Act) relating to
                                payment for injuries for state
                                employees injured while per-
                                forming the duties of any
                                hazardous position to which
Dear Mr. Burke:                 he is assigned.
          Your request for an opinion on the above subject
matter concerns the following facts contained in your request,
which are summarized as follows:
          A state employee while performing duties of a
     hazardous position was severely burned on the left
     arm, back, shoulders, neck, face and hands resulting
     from an electrical explosion and ensuing fire which
     occurred on the fifth floor, west end of the Sam
     Houston Office Building. He received medical treat-
     ment at and was confined to a hospital.
          Pursuant to the provisions of Section 8 of Article V
of House Bill 12 of the 59th Legislature, Regular Session, 1965,
(General Appropriation Act), a request was made to the Governor
by the Board of Control for the approval to pay such expense for
the employee's injuries and care that was not covered or defrayed
by hospitalization carried by the employee. The Governor approved
the payment of such hospital, medical and related expenses of
the employee associated with the above described injury. Upon
submitting the voucher for payment, the Comptroller of Public
Accounts questioned the validity of an item of expense, to wit:
the examination in testing the employee's eyes for evidence of
injury, the prescribing and replacement of lenses and frames of
the employee's glasses. Section 8 of Rouse fill 12, supra.,
limits expenditure of monies governed thereby to "paying neces-
sary drug, medicall:hospital and laboratory expenses for the
care and treatment of the injured employee.
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Mr. William J. Burke, page 2 (c-706)


          You state in your request that the examination and
testing of the employee's eyes for evidence of injury revealed
that:
          "His eyes were uninjured due to the fact that
     he wears prescription glasses. The lense of the
     glasses and the frames of his glasses were ruined
     by the spewing molten metal and electric arc. With-
     out the protection of eye glasses he very likely
     ccjdld have lost his eye sight--or at best could
     not have escaped the area without eye damage and
     sight impairment--the de ree or amount of loss
     under the circumstances 7without glasses) is
     speculative but nonetheless certain--the scarred
     lenses attest to this fact."
          The Legislature has defined the practice of medicine
in Article 4510, Vernon's Civil Statutes, as follows:
         "Any person shall be regarded as practicing
    medicine within the meaning of this law:
          "(1) Who shall publicly profess to be a
     physician or surgeon and shall diagnose, treat,
     or offer to treat, any disease or disorder, men-
     tal or physical, or any physical deformity or
     injury, by any system or method, or to effect
     cures thereof; (2) or who shall diagnose, treat,
     or offer to treat any disease or disorder, mental
     or physical or any physical deformity or injury
     by any system or method and to effect cures there-
     of and charge therefor, directly or indirectly,
     money or other compensation;
           . . .II
          II

          The Legislature has defined the practice of optometry
in Article 4552, Vernon's Civil Statutes, as follows:
          "The practice of optometry is defined to
     be the employment of objective or subjective
     means, without the use of drugs, for the pur-
     pose of ascertaining and measuring the powers
     of vision of the human eye, and fitting lenses
     or prisms to correct or remedy any defect or
     abnormal condition of vision. Nothing herein
     shall be construed to permit optometrists to
     treat the eyes for any defect whatsoever in
     any manner nor to administer nor to prescribe
                          -3410-
Mr. William J. Burke, page 3   (c-706)


     any drug or physical treatment whatsoever, un-
     less such optometrist is a regularly licensed
     physician or surgeon under the laws of this
     State.
           . . .1,
          ,l

          In Baker v. State, 240 S.W. 924 (Tex. Crim. 1922),
the Court made the following observation:
          "It seems obvious that defects of vision
     may result from disease of the eye and other
     organs of the body. It is conceded and the
     optometrist must discern that the impairment
     which he seeks to remedy by lenses is not
     consequent upon disease. It follows that,
     while the eye operates upon mechanical prin-
     ciples, it cannot be treated as a mechanism
     alone. Its vitality as an element of the
     human body cannot be overlooked. Other or-
     gans of the body function upon mechanical
     principles; for example, the heart as a
     pump, the muscles as levers; but they, like
     the eye, are nevertheless organs of the
     human body, and each organ is, to a degree,
     interrelated with all the others."
          With regard to the replacement of the lenses and
frames of the eyeglasses destroyed by the electrical explosion
and ensuing fire, the discussion concerning an eyeglass frame
in Williamson v. Lee Optical of Oklahoma, 75 S.Ct. 461, 348
U.S. 483 (1955) is applicable to th facts involved in your
request. In thi Williamson case, iteis stated:
          "An eyeglass frame, considered in isolation,
     is only a piece of merchandise. But an eyeglass
     frame is not used in isolation, as Judge Murrah
     said in dissent below; it is used with lenses; and
     lenses pertaining as thex do to the human eye, en-
     ter the field of health.
          Under the facts submitted, you are advised that the
fees and charges for the examination and testing of the employee's
eyes for evidence of injury, the fitting of new prescription
lenses and the replacement of frames and lenses are properly pay-
able under the language of Section 8, Article V, House Bill 12,
Acts of the 59th Legislature, Regular Session (1965), and the
authority granted in the letter of approval from the Governor.
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Mr. William J. Burke, page 4 (c-706)


                            SUMMARY
          Where an employee is injured the necessary
     fees and charges for an examination and testing
     of the employee's eyes for evidence of injury,
     the fitting of prescription lenses and the re-
     placement of frames for the lenses is roperly
     payable under the language of Section fi of
     Article V of House Bill 12, Acts of the 59th
     Legislature, Regular Session, 1965, wherein it
     authorized the paying of necessary drugs, medical,
     hospital and laboratory expenses for the care and
     treatment of a state employee injured while per-
     forming duties to which he was assigned.
                                 Very truly yours,
                                 WAGGONER CARR
                                 Attorney General of Texas



                                       John Reeves
                                       Assistant Attorney General
JR:sck
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Wade Anderson
Mark White, Jr.
John Banks
J. C. Davis
APPROVED FOR THE ATTORNEY GENERAL
BY: T. B. Wright




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