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                                                    The Attorney                General of Texas
                                                                        November        24,   1981

        MARK WHITE
        Attorney General


                                                  Honorable  Dan W. Heard                                Opinion    No. NW-393
        Supreme      Court Bullding
                                                  Criminal  District   Attorney
        P. 0. Box 12546
        A&in.     TX. 76711                       Calhoun County Courthouse                              Re:       Payment    of       COUllty
        5121475.2501                              Port Lavaca,   Texas     77979                         hospital     medical    staff     for
        Telex 9101674-1367                                                                               treatment         of       indigent
        Telecomer      512M750266                                                                        patients   at the hospital

        1607 Main St.. Suite       1400           Dear Mr. Heard:
        Dallas.   TX. 75201
        2141742-6944                                   You have     requested   our      opinion     on the following     question:


        4624   Alberta   Ave..   Suite      160
                                                              Is it proper    for a county or a county hospital        to
        El Paso. TX.     79905                                pay doctors    on the medical      staff     of the county
        9 1 w.33.3164                                         hospital   for    treating  indigent     patients   at  the
                                                              hospital?
        1220 Oallas     Ave.. Suite       202
                                                  SCamtori    provisions  governing           county    hospitals   are   found    in V.T.C.S.
        Houslon,     TX. 77002
        7131650-0666                              article  4470, et. seq.

                                                        General   management and control              of a county hospital        is vested      in
        606 Broadway. Suite           312         a board of managers under article                  4480. V.T.C.S.. which        provides,      in
        Lubbock.     TX. 79401
        6061747.5238
                                                  part,  as follows:

                                                              The board sball    also appoint      a staff   of visiting
        43W N. Tenth.      Suite      B                       physicians   who shall    serve    without   pay from the
        McAlle”.     TX. 76501
                                                              county I and who shall      visit     and treat   hospital
        512!662-4547
                                                              patients   at the request    either    of the managers or
                                                              of the superintendent.
        200 Mam Plaza. Suite 400
        San Anlonw,. TX. 76205                                Said     board     shall    fix    the    salaries        of  the
        5121225.4191
                                                              superintendent         and    all    other      officers      and
                                                              employees     within     the limit    of the appropriation
                                                              made therefor      by the commissioners       court.     and such
                                                              salaries     shall    be compensation       in full       for all
                                                              services    rendered.

                                                         The statutory       scheme   of    article   4480  thus    contemplates    two
                                                  potential    classes    of physicians     who may be on the medical       staff of a
                                                  county    hospital:      physicians    who are employees     of the hospital      and
                                                  visiting    physicians.      With regard      to the former   class,   article  4480
                                                  makes cLe;lr that their salaries         art cull compensation     for all services




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    Ilt,nornbIe   Dnn W. Heard - Page 2                  ofw-391,                                                   .’




    rendered,     regardless       of   the    financial       status     of   the patients           receiving
    CllC services.

           In Attorney  General Opinion    O-2422 (1940),     this office      held that
    the board of managers of a county hospital           could not allow claims        of
    physicians   and surgeons   for services   rendered    to charity    patients    in a
    hospital.     This  opinion    has not been overruled        by this      office   or
    modified   by the legislature.       We believe    it   is dispositive        of your
    qucscion.

          It has been suggested        that the Professional      Services      Procurement
    Act.    article     664-4.    V.T.C.S.,       impliedly   repeals      article       4480,
    V.T.C.S.,     and requires   that a county pay reasonable         fees~to     doctors    on
    the medical      staff.    Article     664-4.   V.T.C.S..   provides      in pertinent
    part:

                          Sec.   2.      For purposes        of this     Act the term
                   ‘professional         services’      shall    nean those        within
                  the      scope      of      the     practice      of     accounting.
                  architecture.        optometry,       medicine     or professional
                  engineering       as defined       by the laws of the State of
                  ‘Texas      or     those       performed      by     JnY      licensed
                  architect,          optometrist,           physi~cian,       surgeon,
                  certified        public         acccuntant       or     professional
                  ong’ineer      in     connection        with    his     professional
                  employment or practice.

                          sec.        3.       No      state        agt?ncy ,         political
                  subdivision,             county,         municj~pality,             district,
                  authority        or publicly-owned             utility        of the State
                  of Tcsas        shall      mtikc any contr:lct            for,      or cngilge
                  cite     professional            services         0i.       3n~       1icensed
                  physicinn,            optometrist,            surgeon,            architect,
                  cerl i Tied         public         accountnnc           or         registered
                  enp i lw*r,       or any group            or association              ch?r.$of,
                  selt!c~tcd       u,,     the     basis       of       competitive          bids
                  submitted        fur such contract             or for such services
                  to be performed.             but shall       select       and award such
                  contracts       and enenge such scrviccs                 on the basis of
                  demonstrated         competence       and qualifications               for the
                  type of professional               services      to be performed              and
                  at     fair      and      reasonable         prices,          as     long      as
                  professional           fees    are     consistent          with       and not
                  higher       than the .published              recommended           practices
                  and fees        of the various             applicnble           professional
                  associations            and    do     not      exreed          the     maximum
                  provided       by any state         lav.
llonornhle    I)~IIIW. Ilr:ard - PnRc I               (Mu-‘I’)3 t




Contracts      entered       into   in vi~~latio,n     oi  this            statute      arc    void     as
contrary     to public      policy.    V.T.C.S.    art.   hb4-4,           54.

       In our opinion,       the put-pose of this statute  was to ensure    that
competitive     bidding   statutes   would wt be applied  to the employment of
persons    in the enumerated       professions.  The emergency  clause  ciearly
expresses    this intent:

                       Sec.    a.     The fact          that     tile selection          of
              certified            public        acco”ntants.              architects,
              physicians.              optometrists.                surgeons           and
              professional         engineers      on the basis of the lowest
              bid places        a premium on incompetence                  and is the
              most likely        procedure      for -selecting         the least able
              or qualified         and the most incompetent               practitioner
              for the performance             of services         vi,tally    affecting
              the health,         welfare     and safety         of the public         and
              that,      in spite        of    repeated       expressions         of   the
              legislature         excepting       such professional             services
              from statutes           providing        for    competitive        bidding
              procedures,        some public        officers      continue      to apply
              competitive        bidding     procedures        to the selection          of
              such professional            personnel,        cr‘eaten an emergency
              of the greatest            public      importance        to the health.
              safety      and welfare       of the people            of Texas and an
              imperative        public      necessity         requiring       that     the
              Consritutional          Rule that bills             be read on three
              several       days in each House bc suspended.                    and such
              Rule is hereby suspended,                 and this Act shnil            take
              eii-,tct     from ;~nd after         its    pnssngc.       and it is so
              enacted.

Acts 1971, h.‘nd I.ef.,      ch. 38, $8, at 72.       The c:;;erRt’ncy c Lnusc nay be
considered      in ascertaining     the  legi~slativc     intent     .ZXpr~SSed in a
statute.       Houston  Belt Terminai   & Ry. Co. v. Clark,            143 S.W.Zd 373
(Tex.    1940).

       Article     htG+-4. V.T.C.S..          did not impliedly              repeal     every     statute
authorizing        the    appointment         of    a physician            to a pclblic           service
position      carrying       little      or no compensation.                  See.     e.g.,      ?ledical
Practices       Act,     552.05,       2.06,      Acts       1981,     1st      C.S.,       ch.     1,    §l
(qualifications         nnd compensation              of     members of          Board       of   tledicnl
I:.xamiuers).      Section      3 of article       bh4-4,       V.T.C.S..      clearly      states     that
professional        Fees must not “exceed              the maximum provided               by any state
law.”     Article     44RO, V.T.C.S.,          pl-ov:ides that visiting            physicians        shall
scrvc    withalt      p%~y irom the county.              ‘l‘tlnl~, the provisions             of article
664-4,     V.T.C.S.,       2nd article          i4t40, v.1‘.c:.s.,          m;,” hr cvnstrued             in
harwny .        hrtirlc     664-4,      V.T.C.S.,         prcvtwts        puhiic      officials        from
cnRag:i ng tt,t: :,t.ltnl        professional         SL~TV   ic.vs aw crmkp<‘ti tive           hids     and
Honorable    Dan V. Heard - Page 0            (MU-393)




restricts      their     discretion   in   setting           compensation     by    requiring
reasonable     fees.     It has no bearing     where         the legislature     has enacted
a statute      setting     or denying   compensation            for physicians     and other
professionals.

       We conclude       that    the board of managers of a county hospital                may
not   pay physicians       for    treating indigent patients at the hospital.

                                       SUMMARY

                   Article   4480.       V.T.C.S.,          prevents     a county
             from paying    doctors       on the         medical   staff   of the
             county hospital     for     treating         indigent   patients   at
             the hospital.

                                              ,&m

                                                         Attorney   General   of   Texas

JOHN W. FAINTER, JR.
First Assistant Attorney           General

RICHARD E. GRAY III
Executive Assistant         Attorney   General

Prepared    by Susan L. Garrison
Assistant    Attorney General

APPROVED:
OPINlON COMMITTEE

SUSJll II. Cnrrison,       Chairman
Jon I!ible
Rick Cilpin
J im Moe 11 inger
firuse Youngblood




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