               ‘Txs~          ATTORNEY                   GENERAL
                                        OF     TEXAS




Honorable Homer Garrison, Jr.
Director
Texas Department of Public Safety
Austin, Texas
                                                   opinion   No. ww-566

                                                   Re:   Can the Texas Departient of
                                                         Public Safety lawfully expend
                                                         from appropriated funds to pay
                                                         for medioal service;    medical
                                                         bills and hoepltelizatlon    ex-
                                                         pense for employees injured in
                                                         line of duty, and related
Dear Col.   Gerrleon:                                    questions.

            We.have received your letter of February 19, 1959, In which yoi
request   our opinion on the following  queatione:

           "1.  Can the Texas Department of Public Safety lawfully
     expend from appropriated funda ta pay for medical service,
     medical bills and hospitalization  expense for employees ln-
     Jured in line of duty?

           "2. Can the Department lawfully expend appropriated
     funds to pay for funeral expenses of employees when death
     results in line of duty?

           “3. Can the Department lawfully pay for medical ser-
     vice in connection with physical examinations given to pros-
     pective employees for the benefit of the Department 80 that
     it may determine whether they are physically  qualified for
     employment?

            “4. Can the Department lawfully pay for medical service
     in connection with physical examinations of its employees for
     the benefit of the Department to determine their physical
     fitness for retention  in the Department, promotion, or trane-
     fed"

          Because of the considerationa              involved,   we will   anewer Questions   1
and 2 together.

           Section      ti,   Article    III   of the Constitution   of Texae, reads    in
pert as follows:
Honorable   Homer Garrison,   Jr.,   page 2 (~~-566)



           “Sec. 44.     The Legislature   shall provide by ‘lav for the
     compensation of all officers,       servants, agents and public con-
     ~otOre,      not provided for in this C6netitution,      but shall not
     grant extra COmpenSatiOn      to any officer,    agent, servant, or public
     contractore,    after such public servioe shall have been performed
     or contract entered into, for the perfonuance of the same; nor
     grant, by appropriation      or otherwise,    any amonnt of money out
     of the Treasury of the State; to any Individual,         on a claim,
     real or pretended, when the eeme ehallnot          have been provided
     for by pre-existing     law;    + s .” (Emphaele onre.)                   ., ~,
          Seatlon 51 of Article      III   of the Conetitution   of Texas providee
in part as follows:

           "sec.51. The Legislature ehall have no power to tike
     any grant or authorize the making of any grant of public money
     to any Individual,   aaaociation   of individuale, mnnioipal or other
     corporations  whatsoever;   . . .“(With certain listed exoeptione.)

            In an opinion dated ~JanUary lb, 1938,t%Eonorable &eo$H:            1~;
Sheppard, Comptroller of Public Acoounta, this Department held ~th&t,
neither Sebtiti   44 nor Seotion 51 of Artlolb III of the C&etitutl’ti      :-.        :
of Texas, preoluded the Department of Public Safety iram”paying hoepi-
talization,   medical aervioee or funeral expenses of highway pamlmen
injured or killed in the line of duty.      The appropriation   bill there
involved provided fund8 for th& payment of hosplt&zatlon,          medical
servioee and funeral expenses of the patrolmen InJtied or killed in the
line of dnQ.     This oonol~sion was reaohed because thie Department was
of the opinion that providing hospitalization,     medical service6 and
funeral expenses ias a condition of employment a.8 a patrolman.        It wae
held that such did not constitute    prohibited  additional   oaupeneation,
nor did it constitute    granting of public money to a private individual.

           In the case of Byrd v. City of Dallae, et”a1, 118’~Tex. 28, 6
S .W0 2d 738 (1928)) the Supreme Court of T&as had before it the ques -
tion of the oonatitutionallty  of certain laws which provided for a
pension plan for retired policemen and firemen.

            The Supreme Court In that case said:
           ” 0 * . It is academic to say the Iagielature   hae power to
     pass any law which its wisdom suggests that is not forbidden
     by ecme provisions   of the Constitution   (federal or state).  If
     the peneion provided for in this act ie a gratuity or donation
     to the beneficiary,   it is clearly forbidden by the f~damental
     lav,   On the other hand, ff it is a part of the oompeneation
     of such employee for services rendered to the city, or if it
     be fir a publio purpose, then clearly    it le a valid exercise
     of the legislative   power.”
Honorable Homer Garrison,   Jr.,   paga 3 (VW-566)



            The Court goes on to say that there is no reason why a city
may not engage ita servanta and employees upon any terms of payment ao-
ceptable ~to'bothparties.     We feel this reasoning is applloable   to the
State aa well,, 80 long as there is pre-existing    law authoriz,lng the
appropriation   of funds for; the payment for the services rendered.

           The B rd'case~ (supra) iri'cited with approval in Attorney Gen-
eral's Opinion -50- 140 dated Deoember 9, 1941, which opinion approvea
the payment of comparable itema to employees of the~Harris County Savi-
gation District.    In that opinion,    the controlling   distinction   is made
between a sltuation'wherein     the employment oontra6twit.h      the employee
is madefor a determinable sum per month plus an mount of medical at-
teutionj and the situation,    onthe,other    hand, where a determinable
aahry is established    end paid, without a prcmiae of the medicalatten-
tlon, 'then at a subsequent date, after payment of the contract salary
and performance of the services of the contract,        medical eervioe is
given inaddition    ,to the contract salary.

            In your supplemental letter dated February 27, 1959, you in-
formed UB that since the above mentioned 1938 opinion, the.Departnmnt
of Public Safety has recruited    ite law enforcement personnel with the
understanding that they would reoeive such benefite for injuries     or
deathincurred    in the line of duty, and that'frcaz that time your De-
partment has had an established    procedure for making such payments.
You alao,stat+   that such understanding ia a condition of employment
of such personnel and la 80 conaldered by your Department.      To reach
the applicable   law, we shall aeaume such to be the case.
       .-~
           ~Under'such clro&tancea,   we feel~that   there ia no ooneti-
tutional~prohlbition   agalnst making such payments provided there la an
appropriated fund. authorized by a~pre-existing    law from which such pay-
ments may be made.

          The Legislature  has, by general statute,   authorized the pay-
ments of such expenses.   Article 44l.3 (a), Vernon's Civil Statutee,
(1957; 55th Leg., l&t Called Session, Ch. 24, p. 99) reada In part 88
follows:

           "In addition to the authority now provided by law z
     Texas Department of Public Safety may expend public funds
     for the purposes of paying ealarlaaj    '. i ~. drugs. medical,
     hospltal’and   laboratory expense, ‘Andyfuneral exuenee when
     death results in line of duty, . . .” (Emphasle added.)

          This statuts~ is authorlzatiti’,    not only for’ the ty$e of em-
ployment contract here made,  but   is  pre-existing  law to support the
later appropriation  by the Legislature.

          Moneys,appropriated  to the,Texae Department of Public       Safety
by the provisiona of House Bill 133,,Acte of,t$e'55thY+@slature,
 Honorable Rnm& &r&on,         Jr.,   page 4 (wir-566)



 Regular Session,    1957, Chapter 385,ma&e it olear that h portion of lithe
 fund? there,approprfsted     are for”,  .’ ifuneral ex,pense when death re-
 sults   in Kline of duty."And, the abovei’mentioned aot (Article ‘%413(a) ,.I
 Vernon’8 Civil Statut8e) in Sectl9n-~‘2 tieappropriates    thoee funds also
 foi. “. ~. ~. t&e purpoeee, set out In Seo,tlon 1 of this Ant, in addition
 0 the purgmh named in . . ...‘” the appropi%ation bill;

               A~~S~prdprla&u         authorieed~by &!exiqting      ,Isw has been
 ‘pas&! by~the, legibiature          c& this Stat+ t@ &y drug,~.medMai, hoepit+      :
  and : laboratory ~expeniseeof Departint         of.:Pu~lio Safetf$ereonnel~~whea
i in,@d      $n.:line of ‘due,, & funeral expense6 When death ,msulta in
   line ,of.~dti.tg,,,..:Tpe prcrmiee coineuoh paymenti was a~condition fl employ-
  ment, of auoh’,pereonnel.        We are unable~ to determine q~oonatltutional
  ,probib~ition wiiioh would withhol&suoh         pajmetits If&’ those whd ha+e




            ‘: The o~ntrolling  dietinotion~here    ie whether such examlnatione :-
  tire given to employeea and prospective      em@l’oyeee of the DeOarfrment inc&-
 .dent to agd.,in, ‘furtheranoe of,, th&~goverzPnental .funation of ~t,he.Depart-:
 menti or whether they ,&. given for the private benefits of the :%m+’ ’: ~~
  ployee involvSd.     The nature of the information sou&t ‘in a phyeloal
  examination ie .auoh’that it oan~ be obtained only by a qualiiied medical
  examiner atid ,ocinriot be obtained by the rqgu~lsr Departs&     personnel.
  In the event examinations 'for the benefit, of the ‘ermployeee involved were
  t.6 be attempted, suoh would be prohibited by Section 51 of Article III
  of the Texas Constitution      quoted above.   ‘~

              tie examinationa you inqutie abdut are, lx~~ouropinion given
  for’ the benefit of &he Department In ,order for the Deprtmetit to .deter-’
 mine if the poreone involvsd~ we phyeioally able to perform thelx
 .offiololly    ahigned   duties.:. The ‘examinationa would olearly be In f&-
  therqoe    of the Stdte’e purpose, and therefoi’e, would have a goveni-
 ~mental purpose.      tie anaver to your Queation~ 3 and 4 is in, the af-
  firmatlv?.     ‘~



                  llle Department of Public Safety may pay the
                  medioal rind funeral expenses of employees in-:
                  $ared or k$ll.ed In line of duty 80 long as
Honorable Homer Garrison,   Jr.,   page 5 W-56)



                the praise   of such paymetits is a~coti-
                ditlon of employment of the employee;
                expeneea for medical servioe inourred in
                giving employees or pmspective    employ6es
                physical examinations may bd p&d if the
                examinations nre given in furtherance of
                the State's purpose.


                                        Very t”.4 Jo-,
                                        WILLuIIIsoI!r ‘.~’
                                        Attorney   General of Texas



                                               &.+A.
                                        BY d
                                          Tcm I;'-M&erling
                                          Assistant
TI&mg:me

AFPR0VED:

0Pnv10Ip ClzMMITTBR
Gee. P.Blaakburn,Chairman

John Reeves
Gordon C. Cass
JackGoodman-
Riley X. Fletcher

RRVDNEDFORlEEATlQRliEZQXERAL
By:
    W. V. Geppert
