The opinion
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
DG:db:wb