              THE      ,!TTORNEY              GENERAL

                             OFTEXAS




Hon. D. C. Greer                        Opinion No. O-5355
State Highway Engineer                  Re:    Workmen’s Compensation         Insur-
Texas Highway Department                ante for members of Texas State
iiustin, Texas                          Guard as provided       by Senate Bill
                                        135, 48th Legislature;        sufficiency
                                        of physical     examinations;     the cost
                                        of same; identification         of forms
                                        and records     used in administering
                                        the Act; effect      of Section     11 of
                                        Article   8306, Vernon’s      Annotated
                                        Civil   Statutes;    rights   of super-
                                        numeraries;     authority   of Texas
                                        Highway Department to employ priv-
                                        ate adjusters     and to hire addition-
Dear Sir:                               al help to administer       the Act.

            We have your recent     letter    asking eight questions   con-
cerning   Senate Bill  135 of the 48th Legislature,       which provides
Xorkmen’s Compensation     Insurance     for members of the Texas State
Guard.    The portions   of your letter      dealing with the separate
questions   will  be quoted and answered separately.

               Question    (1)    “Section   2,   sub-section      2 reads   in part
as follows:
             I’‘Member ’ shall mean every person in the Texas Defense
      Guar d 0 Provided     that no person shall be classified         as a
      ‘Member’ under this z.-:t nor be eligible           to any compensation
      beneffts    under the terms and provisions          of this Act until
      he shall have submitted himself          first    to a physical  exami-
      nation by a regularly       licensed    physician    or surgeon,  desig-
      nated or accepted       by the Texas Defense Guard to make such
      an examination,      and until,     as a result    of such examination,
      all physical     defects   existent    at the time of the examina-
      tion have been noted and recorded.           t

               “Section   11 is    in part   as follows:

            ‘IrIt shall be the duty of the Adjutant General’s    De-
      partment to preserve    as part of its. permanent records  said
      Doctor’s   Certificates  and said Enlistment  Forms to which
      the State Highway Department will have access.’
               “Is   a special   examination   intended,         or are we to ac-
      cept     the   rather   superficial   examination         given at the time
Hon.   D. C. Greer,         page 2     (O-5355)

       of   enllstment?‘~

               You will    note      that this   Act operates     prospectively
and not     retrospectively.           Section   3 provides     in part:

              !‘After the effective  date of           this law any member, as
       defined     in this law, who sustains           an injury   in the course
       of duty shall be paid compensation               as hereinafter   provided.”

Insurance     is not provided   for injuries    received   prior to the ef-
fective     date of the set.   The purpose of the physical         examina-
tion is t> record the defects       extant when the guardsman quali-
fies    for insurance.    It is therefore,     our opinion    that a physical
examinlti.on    made on enlistment   prior   to the effective     date of
the Act is not sufficient      to qualify    a guardsman for insurance
under the Act.

             Question (2) “If special             examination     is   to be given,
       who is to bear cost of same?”

            Section   15 authorizes    your department     “to expend for
all costs,   administrative    expense (other     than salaries),    charges,
benefits,   and awards, any funds appropriated         for that purpose.”
Section   18 appropriates    $15,000.00    “to carry out the provisions
of this Act from its effective        date until   September 1, 1943.“.

             But, you will    note that a guardsman does not qualify
for insurance     merely by being in the guard.        He must also submit
himself    to the required    physical    examination  if he wishes to ob-
tain the benefits       of the Bet . The Act does not provide       that it
is the duty of your department to see that each guardsman quali-
fies.
             It is, therefore,      our opinion   that the cost of the
qualifying     physical   examination   is not a proper administrative
cost or expense to be paid out of the @15,000.00           appropriation,
but should be borne by the guardsman who seeks to qualify.

              clue&ion    (3)     “Since we will       be administering       the
       benefits    to our own employees,           and those to the Guardsmen
       through the same Division            of the Highway Department there
       will   be much cause for confusion             in keeping the records
       separated     unless     special    precautions     are taken to clearly
       set these two functions           apart.      This confusion   will      be par-
       Mcularly      prevalent      among doctors      in making their       reports
       and submitting       bills    for services.        There will   also likely
       be some difficulty         on the part of the Industrial            iiccident
       Board in separatisn          unless    special    designation   is given to
       the new work.        In order to avoid this anticipated               confu-
       sion we would like to set up the administration                   of Senate
       Bill   135 under the name of Texas State Guard Compensation
       Administration.
h




Hon.   D. C. Greer,         page   3   (O-5355)

              “Is   there     any legal    reason   why this   cannot   be done?”

              By the     phrase “‘set     up the administration”    we understand
you to mean the        identification        of forms and records,    We see no
legal    reason to     prevent your       department from marking or printing
the above woted         name on all       forms and records    used in the admin-
istration     of the     Act.

              Question   (4) “If permissible,           are there any special
       requirements    to be met in order to           so operate?”

           We find no extra or additional requirement    that arises
merely because your department uses for purposes    of identifica-
tion the name Texas   State Guard Compensation   Administration.”

             Question    (5)   “Section   11, Article    8306, Acts 1927,
       tith Legislature,      Page 41, Chapter 28, Section        1 was adopted
       by reference.      This section    provides    ‘While the incapacity
       for work resulting      from the injury     is partial,    the associa-
       tion shall pay the injured        employee a weekly compensation
       equal to sixty per cent of the difference            between his aver-
       age weekly wages before        the injury   and his average weekly
       earning capacity      during the existence      of such partial    capa-
       city. ’

              “Since the compensation     rate for guardsmen is fixed      at
       $20 per week, without      any relationship    to nor being af-
       fected   by the rate of earnings      (See Section   2, sub-section
       6) is Section    11, Article   8306 effective     under Senate Bill
       135?”
             It is our opinion    th& Section   11 of Article     8306,
Vernon’.s Annotated Civil     Statutes,  is not rendered    ineffective
by Section     2, subsection  6 of Senate Bill   135’ and that the “defi-
nite and fixed     sum of $20.00 per week” pertains     to total     incapa-
city.    It is also our opinion     that “average weekly wages before
the injury”     as used in such Section    11, means in the language of
Senate Bill     135 “such wages as would produce a maximum compen-
sation   rate of $20.00 per week.”

             Que st ion (6)      “We have been advised by the Adjutant                 +
       General’s    Department that numerical           limits   have been placed
       on the various     units,     for instance     a rifle    company may not
       have more than 75 enlisted           members.      Some of these compan-
       ies have ‘waiting      lists’      or applicants     that cannot be ac-
       cepted because      the company is already          at full   strength.
       The se I supernumeraries’       , as they are called,        are allowed to
       attend and take full        part in the training         program,   just as
       the regular     members do.        They may wear the uniform,         but not
       the shoulder     patches.      They use the guard’s         equipment,   but
       none of it is actually          issued to them, as it is to members.
hn.   D. C. Greer,page 4       (O-5355)

      Thev
      -__.   are
             --   not
                  __-  eiven
                       “_.--     a physical examination nor d0 tl:.ey fill
      cut enlistment__ Dane =-_ 2s.   A separate record is kept ;li these
      men aa the:ir attendance.for         training.   In reilit:: &:
      ,.:re reservists     under full training.
            “12 -TW opinion are they entitled        to benef?        p3via-
      2a 72;~Se&t: 3ill. 135?"
          In ;sur 02inion the WsupernumerarlesU are no? ev.tf+,l~a
to the bandl’;s  of the Act.
              .'.
                '~isticr(7) %ec+ion 15 sz;,‘s, aThe Department !.s
      h-egg-.d&horized      to expend for all costs, adralnlstrzive
      expense (other than salaries),        charges; benefits,   and ~!?rds
      any funds a?proprlated       for that purpose.’   It ‘rs the general
      3 AAce       edong insurance companies to have regularly      con-
      .-situtea claims adjustment service coinpanies to r’,i, m*d of
      .Giair work of investigatic;l,      adjustment, et cetera,   of
      cl:‘r,ia~s upon a fee basis.
             “Do we have .luthority to use such.servlces,        ad    pay fees
      for   same unaar the limitations  of Section 157”
            Id 34 Texas Jurisprudence,      page 459, it    is said:
             “It is i genarsl rule that public duties must be per-
      follned and governmental powers exercised by the -ofricer or
      k&y design&ea by law--that      thejr cannot he delegated to
      others.    This is particularly  true of duties which are ~jndi-
      cial in their nature, or discretion,     and which are regarded
      .zs a part of the public trust ass-Jn.ed. . . .”
            Also .in I?aill v.. State,   129 S.W. 630, the court        quotes
3’2. sprroves this language:
            “The .general rule is that ‘We performance of public du-
      ties cannot be delegated by a public officer,         ?.nd utdess
      there is a clear expression      in the statute to the contrary
      it ~31 be presumed that the Legislature         intended that pub-
      3.1~ duties which’ require the exercise     of .dlscYetion   should
      tie perfotimed. by public offlcers.n
           Webster.‘s Dictionary  defines the word “ad~just” when
used in connection with insurance as meaning, “To determine.the
amount to be paid under a policy in settlement of a 1.0s~~ and
an ‘8adjuster1’ as “one who &ajasts.”
            In our opinion.such   functions re@lre  the exercise of
dis>+etion.ana   your department has no authority~ to use and pay
fees for such services    of “claims adjustment service companies.’
Hon. D. C. Greer,      page   5   (O-5355)


             However, In the case of Terre11 v. Sparks, State Treas-
urer,    135 S.W. 519, our Supreme Court considered     an Act provid-
 ing an appropriation    to be expended under the direction     of the
 .-ttorney  General “for the purpose of enforcing     any and a11 laws
of the State of Texas, and for the purpose of paying any land all
;:*cessary   expenses  in bringing  suits  or paying expznses   in prose-
cut ing same o I’ The court held that such Act authorized     the Attor-
ney General to contract     with an attorney   to perform certain   serv-
ices under the direction      of the Attorney General.    The Treasurer
was ordered to honor the warrant issued to such attorney.

              It is further   our opinion    that your department under
the quoted Frovision       of the iict may contract    with such claims
Ldjustnebt      companies for the performance     of ministerial    services
suoh as the investigation        and reporting   of facts   in connection
 ;l-th claims,    and the fee for such services     may be paid out .of the
appropriation.

              Question    (8)    “The Departmental       ;ippropriation    Bill   pro-
        . i
     vxes,       !iill revenues,    fees,    and gr,ants in aid received        for
     credit     to the State Highwa:; Fund during the biennium begin-
     ning September 1, 1943, together               with the balance      of such
     funds on hand at the beginning              of each year of the biennium,
     are hereby appropriated           for the payment of the specific             ap-
     propriations       herein made for the State Highway Department
     and tb; Department of Public              Safety,   and for the establish-
     ment of a system of State Highways and the planning,                     con-
     stri.~.~::tlon, dnd m;lnt,nance        thereof    as contemplated      and set
     fori;)? in Chbp,ter 1, Titie         II6 and Chapter 186, General Laws
     of “,.,:,a Regular Session       of tile Thirty-ninth       Legislature,      and
     illiietidmeti;a thereto.    ’

           “Do we have ailthority to hire additional  help,                 if any
     be required,   to administer the Act, and pay salaries                   of
     sl;m% from regular  Highway Department funds?”

            In our c;:!inlon you do not have authority    to hire addi-
tional  help to administer     the Act and pay the salaries   of such
employees from regular      Highway Department funds.   The last para-
graph of the Dapartmental       Appropriation Bill that you mentioned
reads In part as follows:

            “There is hereby appropriated       for each year of the Bl-
     ennium beginning     September 1, 1943 and ending August 31,
     1945, the sum of Fifty        Thousand ($50,000)   Dollars   for the
     uses and purposes      of,,and   carrying  out the provisions    of
     Senate Bill     No. 135, Hcts of the Regular Session       of the 48th
     Legislature     no salaries    shall be paid from this approprla-
     tion.   . . .‘I
Hon.   D. C. Greer,    page    6   (O-5355)


            Trusting    this   opinion    sufficiently        answers   your   in-
quiries,   we are

                                         Yours    very    truly

                                         ATTORNEYGENERALOF TEXAS

                                         By is/ Donald Gay
                                         Donald    Gay,    Assistant

 APPROVEDJUL 1, 1943
/s/ Gerald C. Mann
ATTORNEYGENXRALOF TEXAS

APPROVED: OPINION COMMITTEE
BY:      BWB,CHAIFWAN

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