                                  August     26,   1975


The Honorable     W. J. Estelle.       Jr.          Opinion No.   H-   676
Director,   Texas Department
of Corrections                                      Re:    Payment to state employees
Huntsville,   Texas 77340                                  injured or killed while per-
                                                           forming the duties of a
Dear Mr.    Estelle:                                       hazardous  position.

     You have requested our opinion regarding payment of compensation
under article 6822a.   V. T. C. S., to state employees      injured or killed while
performing   the duti~es of a hazardous position.     We note that although the
state employees   workmen’s     compensation   statute,   article 8309h, V. T. C. S.,
overlaps to some extent with the provisions      of article 6822a, we do not
believe article 6822a has been impliedly     repealed.     -See Attorney General
Opinion H-338 (1974).

    Specifically,      you inquire:

        (1) Whether inclusion          of the~term”hazardous
        position’ in article V,       section 8 of the 1973
        General Appropriations          Act is consistent with
        the language of article        6822a.   V. T. C. S., which
        authorizes  payment of        compensation     to certain
        state employees.

         (2) Whether the administrative    head of an
         agency is authorized to determine which posi-
         tions shall be classified as ‘hazardous  positions.           ’

        (3) Whether an employee who works in a hazardous
        position might be compensated     for injuries received
        while he is engaged in activities   not related to the
        hazardous   classification.




                                       p. 2945
                                                                                       .


The Honorable    W.    J. Estelle,   Jr.,    page 2    (H-676)




   Article   6822a    provides:

       Section 1. The Legislature     is hereby authorized to
       appropriate public funds for the purpose of paying
       for drugs and medical,    hospital,  laboratory,   and
       funeral expenses of state employees      injured or
       killed while engaged in performance      of a neces-
       sary 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   govern-
       mental function.

       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 acti-
       vities described   in Section 1 of this Act, and only
       to the extent authorized by appropriations     made
       by the Legislature   . . .

Article V, section     8 of the current     General   Appropriations   Act’protides,
in pertinent part:

       . . . appropriations   made in this Act . . . may
       also be expended for paying necessary    drug, medical,
       hospital,  and laboratory  expenses for the care a’nd
       treatment of any State employee injured while per-
       forming the duties of any hazardous position to which
       he is assigned by his State employment.      For the
       purposes of this Section,   ‘hazardous position’ shall
       mean one for which the regular and normal duties
       inherently involve the risk or peril of bodily injury
       or harm . . .




                                      p. 2946
The   Honorable   W.   J. Estelle.   Jr.,     page 3   (H-676)




      In our opinion, article V, section 8 of the Appropriations       Act
 validly appropriates   funds upon the authority of article 6822a.       The
 Legislature   has chosen to implement only that portion of article 6822a
which provides compensation       for those employees       who are injured or
 killed and whose duties “require the employee to expose himself to
unavoidable dangers peculiar to the performance           of a necessary   govern-
mental function. ” The definition of “hazardous         position” in article V,
 section 8 appears to be equivalent in all respects to the language of
article 6822a.    and we perceive   no inconsistency    between these statutes.
-See  Attorney  General   Opinion No.  M-431    (1969).

     Section 2 of article 6822a authorizes .the expenditure of appropriated
funds by “agencies      of the state, ” and it seems apparent that, within
the terms of article 6822a and the definition of “hazardous              position” in
article V, section 8 of the Appropriations           Act, the power to expend
includes the authority to determine which positions are within the
statutorily-defined     classification.      Whether the administrative       head
of a particular    a’gency is himself cloaked with the authority to make
this determination      depends upon the legislation        creating the agency and
the powers conferred upon~ its chief administrative             officer.   We there-
fore cannot answer this question in general terms.                In the case of the
Texas Department        of Corrections,      however,    the Board of Corrections,
together with the Director,         is vested with the general authority of
management       and control by article 6166g. V. T. C. S. , and the Board
is directed by article 61663 to delegate to the Director the “authority
to manage the affairs of the prison system,             subject to its control and
supervision.”      Accordingly,       we believe that the Director of the Texas
Department      of Corrections     is authorized,    subject to the “control and
supervision     of the Board of Corrections,        ” to determine which positions
shall be classified     as “hazardous      positions. ”

     As to your third question,   it is our opinion that an employee may be
compensated    only for those injuries incurred while actually “performing
the duties of [a] hazardous   position to which he is assigned. ” If the
assignment   is “hazardous.   ” and an injury occurs,     the employee may be
compensated,    even though the injury is unusual or unexpected.         In
Attorney General Opinion M-431        (1969), this office held that a psychologist
in a state hospital who contracted tuberculosis       from a patient as a result
of a two-hour psychological     examination qualified for compensation,       since
the psychologist’s    position was “hazardous”      and since his “injury” was




                                     p.     2947
The Honorable     W.   .I. Estelle.    Jr.,    page 4    (H-676)




job-related.   Thus, we believe that in order for an employee to receive
compensation   pursuant to article 6822a and article V, section 8 of the
General Appropriations   Act he must be assigne.d to a “hazardous   position”
and further, his injury must directly result from performing    the duties
of such hazardous position.

                             SUMMARY

               Article V, section 8 of the 1973 General
          Appropriations   Act implements    article 6822a.
          V.T.C.S..    by authorizing payment of compen-
          sation to any state employee killed or injured
          while performing    the duties of any “hazardous
          position. ” Whether the administrative       bead of
          a particular agency is authorized to determine
          which positions &all be classified     as “hazardous”
          depends upon the legislation   creating the agency.
          Any employee to whom compensation         is paid
          must be assigned to a “hazardous      position” and
          his injury must directly result from perform-
          ing the duties of such hazardous position.

                                               *Very    truly yours,




                                                  Attorney   General   of Texas




DAVID=.       KENDALL.       First    As$istant




C. ROBERT HEATH,           Chairman
Opinion Committee




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