                                        GENE
                       OF        EXAS



                          September 27,   1961



Honorable Robert S. Calvert         Opinion No. ~~-1156
Comptroller of Public Accounts
Capitol Station                     Re:   Whether a game warden
Austin 11, Texas                          who was injured prior
                                          to the effective date
                                          of Article 6822a, Ver-
                                          non's Civil Statutes,
                                          has a valid claim a-
                                          gainst the State for
Dear Mr. Calvert:                         his medical expenses.
         We are in receipt of your request for an opinion
on the above captioned question.
         You also inquire as to the effect of our Opinion No.
WW-587 (1959) on this problem.  That opinion dealt with a legls-
lative appropriation for hospital and medical service and held
that such an appropriation had no statutory authority and con-
sequently, was violative of Section 44 of Article III of the
Constitution of Texas. This Section provides as follows:
              "The Legislature shall provide by law
        for the compensation of all officers, servants,
        agents and public contractors not provided for
        in this Constitution, but shall not grant extra
        compensation to any officer, agent, servant, or
        public contractors, after such public service
        shall have been oerformed or contract entered
        into, for the performance of the same; nor grant,
        by appropriation or otherwise, any amount of
        money out of the treasury of the State, to any
        Individual, on a claim, real or pretended, when
        the same shall not have been provided for by pre-
        existing law; nor employ anyone in the name of
        the state, unless authorized by pre-existing law."
        (Emphasis added)
As stated above the appropriation was held invalid since there
was no pre-existing law to authorize such an appropriation.
         Shortly after the release of the opinion mentioned
above, the Legislature passed such an authorization, now codi-
fied as Article 6&?2a, Vernon's Civil Statutes, which provides
Honorable Robert S. Calvert, page 2   (~~-1156)



as follows:
              "Section 1. The Legislature is hereby
        authorized to appropriate public funds for the
        purpose of paying for drugs and medical, hos-
        pital, laboratory, and funeral expenses of state
        employees injured or killed while engaged in per-
        formance of a necessary governmental function
        assigned to the employee, or where the duties
        of such employee require the employee to expose
        himself to unavoidable dangers peculiar to the
        performance of a necessary governmental func-
        tion.
              "Section 2. Agencies of the State are
        hereby authorized to expend appropriated funds
        for the purpose of paying for drugs and medical,
        hospital, laboratory, and funeral expenses to
        those State employees under their jurisdiction
        and control only when such employees are engaged
        in the activities described in Section 1 of this
        Act, and only to the extent authorized by appro-
        priations made by the Legislature.
               "Section 3.  The payment of the expenses
         provided for in Section 1 of this Act is auth-
         orized to be made in addition to other prerequi-
         sites of employment now authorized by law."
         The 57th Legislature made an appropriation for medical
and surgical expenses for the injured game warden in question.
It can be seen that Article 6822a, supra, serves as the pre-
existing law for this appropriation.
          However, your opinion request calls our attention to
the fact that the em loyee received his injuries prior to the
passage of Article 6ii22a. Under the holding of our opinion
NO. ww-566 (1959), the appropriation in question was valid,
notwithstanding the constitutional ban of additional compensa-
tion, sincethe injured employee was promised such ayments as
a condition of his employment, and Article &413(&aP , Vernon's
Civil Statutes, enacted in 1957, constituted pre-existing law
to support the appropriation. Said Article reads in part as
follows:
               "In addition to the authority now pro-
         vided by law the Texas Department bf Public
         Safety may expend public funds for the purposes
         of paying salaries, . . . drugs, medical, hos-
         pital and laboratory expense, and funeral ex-
         pense when death results in line of duty, . . .'
         (Emphasis added.)
Honorable Robert S. Calvert, page 3.   (WW-1156)

Mr. Howard D. Bodgen, Executive Secretary of the Game and Fish
Commission Informed this office upon request for additional facts,
that this game warden was not promised these payments as a condi-
tion of his employment. Furthermore, the Legislature has not en-
acted a law similar to Article 4413(&a) covering employees of the
Game and Fish Commission.
         In the case of Austin Nati nal &nk v. Sheaoa d, 123
Tex. 272, 71 S.W.2d 242 rlg34) the zourt was confronted with a
similar interpretation of Article III, Section 44 of the Con-
stitution and stated:
               "By its express words the constitutional
         provision under consideration in no uncertain
         terms prohibits the Legislature from appropriat-
         ing state money to 'any individual' unless such
         appropriation shall have been provided for by a
         'pre-existing law.' We interpret this to mean
         that the Legislature cannot appropriate state
         money to 'any individual' unless, at the very
         time the appropriation is made, there is already
         in force some valid law constituting the claim
         the appropriation is made to pay a legal and
         valid obligation of the state. By legal obliga-
         tion is meant such an obligation as would form
         the basis of a judgment against the state in a
         court of competent jurisdiction in the evel;ft
         it should permit itself to be sued. . . .
         As to the appropriation in question, the "pre-existing"
law was present in the form of Article 6822a. However, this law
did not make the game warden's claim for drugs and medical, hos-
pital and laboratory expenses, incurred prior to the effective
date of the Act, a legal and valid obligation of the State. The
claims for medical payments and hospitalization incurred prior
to the effective date of Article 6822a could not be the basis
of a valid judgment against the State. If the recent appropria-
tion were upheld in its entirety, we would be giving a retro-
spective operation to Article 6822a in violation of Section 16,
Article I of the Texas Constitution. Retroactive interpretations
of statutes are not encouraged by the courts. Heights Hospital,
Inc. v. Patterson, 269 S.W.2d 810 (Civ.App. 1954, error ref.).
This office cannot give Article 6822a such an operation unless
it clearly appears from the legislative phraseology that such
effect was intended. The statute did not recognize the entire
claim and we see no language to imply such a validation.
         However, the game warden's itemized list of medical
and surgical expenses as paid by him shows that he incurred
significant expenses subsequent to the effective date of
Article 6822a, which was August 12, 1959. The injuries were
received on July 25, 1959. You are advised that that portion
of the appropriation reimbursing the employee for all expenses
                                                                 .




Honorable Robert S. Calvert, page 4.   (WW-1156)


incurred on and after August 12, 1959, is valid, and upon pro-
per itemization of such expenses, you may pay same.

                          SUMMARY
              A game warden who was injured prior
              to the effective date of Article 6822a,
              Vernon's Civil Statutes, has a valid
              claim against the State only for those
              medical expenses incurred subsequent to
              the effective date of said statute.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas



FDW:lgh:zt


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Jim Broadhurst
Coleman Gay III
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
