               THEA

                                  AusTxN.       TEXAS




                               January     31, 1950


Hon. C. H. Cavness                   Opinion No. V-993
State Auditor
Capitol Station                      Re:    Construction  and interpretation
Austin, Texas                               of H.B. 321, Acts 51st Leg., 1949,
                                            Ch. 553, p. 1070.
Dear   Sir:

             You have requested anopinion regarding the construc-
tion and interpretation   of House Bill 321, Acts 51st Legislature,   1949,
Ch. 553, p. 1070, which is an act making appropriations      for the sup-
port, maintenance,    and improvement   of State hospitals and special
schools of this State and prescribing   certain regulations   and restric-
tions in respect to the expenditure of these appropriations.      Your re-
quest 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 insti-
       tution 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 al-
       lowed 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 institu-
       tions 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 re-
       tain 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 Em-
       ployees.     ‘
                    In  recognition   of  salaries  paid wftbin in-
       stitutions 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 author-
       ize the Board to furnish housing, provisions,      meals,
       laundry service,   etc., for its employees    at their head-
       quarters   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 hos-
       pitalization   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 fa-
       cilities,    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 mownuse 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     ser-
       vices for wards of the State (at present this institu-
       tion‘has inits emp~~oyone’fulltime  dentist).   One of the
       part-time   dentists for more than two years received
       certain full emolument allowances      specified for full-
       time 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 emol-
       uments.

               “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 fur-
       nished 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 insti-
       tutions.   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, pro-
visions,     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 hous-
ing, 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 pro-
vides, $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 con-
       trol 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       Institu-
tions’” 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, cod-
ified as Article  3174b, created the Board for Texas State Hospitals and
Special Schools.    Section 2 of this act gives to this new board manage-
ment 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 ex-
       ercised 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 insti-
tutions 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. Shep-
paPd, 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 author-
ize and could not authorize superintendents    of State hospitals for the
Hon.   C. H. Cavness,   page 6 (V-993)




treatment of mental illnesses   to engage in private practice,       be-
cause of Section 1 of Article 3184, V.C.S., as amended, Acts         48th
Leg.,1943, Ch. 65, Sec. 1, p. 82, which provides that:

               “The Superintendent of each State Hospital
       shall be a married man, a skilled physician author-
       ized to practice medicine    in Texas, and shall have
       not less than five (5) years experience     in the treat-
       nient 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 superinten-
dents 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 super-
intendents 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 inde-
pendent 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   hereto-
fore 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 per-
form 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 ac-
cord 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.          How-
ever, 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. There-
fore, 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 em-
ployees 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    ob-
served, we do not construeSection       13(b) as an attempt to change exist-
ing 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 in-
dependent contractors.      As independent contractors        such employees
are entitled to retain all charges for services.        H.B. 321, being a gen-
eral rider, does not change this rule.      Therefore,     we conclude that
the Legislature    in enacting Section 13(b) of H.B. 321 intended to author-
ize the Board to require employees       to turn over to the institution only
such portion of charges made for services         as will reasonably     com-
pensate 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 em-
ployee 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 pre-
scribe 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 in-
stances these employees       will use State-owned      facilities   in reader-
ing 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 employ-
ment 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 eir-
cumstances     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 an-
swer to question (3), infra.

             Question (2) presents the question of whether the Board
for Texas State Hospitals    and Special Schools may lawfully author-
ize 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, pro-
visions, fuel, lights, water, and laundry.    We have reached this con-
clusion from an examination     of previous appropriation     acts for ele-
emosynary    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,    of-
      ficer, 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,  in-
      cluding himself,    wife and legally dependent chil-
      dren.”

              Furthermore,  in the 1947 Appropriation    Act, under the
heading   “Salaries,” there are several provisions    similar to the fol-
lowing:

             “(Superintendent,   Assistant  Superintendent
      and all full-time  physicians,   phyehiatrists  and Den-
      tists 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  treat-
ment as a part of an employee’s   emolument.

               The 1 45, 1943, and 1941 Appropriation      Acts for eleemosy-
nary institutions ? are 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 law-
fully 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 pro-
visions 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 in-
stitution in which he is employed even though a charge therefor
is made, unless such employee        complies with the statutory re-
quirements    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 in-
stitution.  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 in-
stitution.   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, Un-
der such circumstances      we think it would be permissible          under exist-
ing 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 institu-
tional 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 require-
ment for admittance to obtain and pay for professional              treatment in
the State institution in which they are employed.             The State is not en-
gaged 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, institu-
tional 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 in-
stitutional 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 profes-
sional persons rendering the services.

              Accordingly,  you are advised that except in unusual cir-
cumstances    the Board cannot authorize hospitals and schools to fur-
nish 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 spe-
cifically 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. Sec-
tion 20, H.B. 321, reads as follows:

             !‘Emoluments     of Board Employees:      In recogni-
      tion 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 work-
ing. Therefore,    we advise you that the Board is authorized to allow
emoluments     out of funds and facilities   of one or more of the institu-
tions 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, pro-
      vided 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 State-
      owned 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 hospitaliza-
      tion 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
                                           ByT!-;?+-&
                                                   Pat T. Peyton, Jr-
Executive Assistant                                        Assistant




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