Untitled Texas Attorney General Opinion ( 1981 )

1 *
.
-
The Attorney General of Texas
November 24, 1981
MARK WHITE
Attorney General
Honorable Dan W. Heard Opinion No. NW-393
Supreme Court Bullding
Criminal District Attorney
P. 0. Box 12546
A&in. TX. 76711 Calhoun County Courthouse Re: Payment of COUllty
5121475.2501 Port Lavaca, Texas 77979 hospital medical staff for
Telex 9101674-1367 treatment of indigent
Telecomer 512M750266 patients at the hospital
1607 Main St.. Suite 1400 Dear Mr. Heard:
Dallas. TX. 75201
2141742-6944 You have requested our opinion on the following question:
4624 Alberta Ave.. Suite 160
Is it proper for a county or a county hospital to
El Paso. TX. 79905 pay doctors on the medical staff of the county
9 1 w.33.3164 hospital for treating indigent patients at the
hospital?
1220 Oallas Ave.. Suite 202
SCamtori provisions governing county hospitals are found in V.T.C.S.
Houslon, TX. 77002
7131650-0666 article 4470, et. seq.
General management and control of a county hospital is vested in
606 Broadway. Suite 312 a board of managers under article 4480. V.T.C.S.. which provides, in
Lubbock. TX. 79401
6061747.5238
part, as follows:
The board sball also appoint a staff of visiting
43W N. Tenth. Suite B physicians who shall serve without pay from the
McAlle”. TX. 76501
county I and who shall visit and treat hospital
512!662-4547
patients at the request either of the managers or
of the superintendent.
200 Mam Plaza. Suite 400
San Anlonw,. TX. 76205 Said board shall fix the salaries of the
5121225.4191
superintendent and all other officers and
employees within the limit of the appropriation
made therefor by the commissioners court. and such
salaries shall be compensation in full for all
services rendered.
The statutory scheme of article 4480 thus contemplates two
potential classes of physicians who may be on the medical staff of a
county hospital: physicians who are employees of the hospital and
visiting physicians. With regard to the former class, article 4480
makes cLe;lr that their salaries art cull compensation for all services
p. 1335
’ I
.
Ilt,nornbIe Dnn W. Heard - Page 2 ofw-391, .’
rendered, regardless of the financial status of the patients receiving
CllC services.
In Attorney General Opinion O-2422 (1940), this office held that
the board of managers of a county hospital could not allow claims of
physicians and surgeons for services rendered to charity patients in a
hospital. This opinion has not been overruled by this office or
modified by the legislature. We believe it is dispositive of your
qucscion.
It has been suggested that the Professional Services Procurement
Act. article 664-4. V.T.C.S., impliedly repeals article 4480,
V.T.C.S., and requires that a county pay reasonable fees~to doctors on
the medical staff. Article 664-4. V.T.C.S.. provides in pertinent
part:
Sec. 2. For purposes of this Act the term
‘professional services’ shall nean those within
the scope of the practice of accounting.
architecture. optometry, medicine or professional
engineering as defined by the laws of the State of
‘Texas or those performed by JnY licensed
architect, optometrist, physi~cian, surgeon,
certified public acccuntant or professional
ong’ineer in connection with his professional
employment or practice.
sec. 3. No state agt?ncy , political
subdivision, county, municj~pality, district,
authority or publicly-owned utility of the State
of Tcsas shall mtikc any contr:lct for, or cngilge
cite professional services 0i. 3n~ 1icensed
physicinn, optometrist, surgeon, architect,
cerl i Tied public accountnnc or registered
enp i lw*r, or any group or association ch?r.$of,
selt!c~tcd u,, the basis of competitive bids
submitted fur such contract or for such services
to be performed. but shall select and award such
contracts and enenge such scrviccs on the basis of
demonstrated competence and qualifications for the
type of professional services to be performed and
at fair and reasonable prices, as long as
professional fees are consistent with and not
higher than the .published recommended practices
and fees of the various applicnble professional
associations and do not exreed the maximum
provided by any state lav.
llonornhle I)~IIIW. Ilr:ard - PnRc I (Mu-‘I’)3 t
Contracts entered into in vi``latio,n oi this statute arc void as
contrary to public policy. V.T.C.S. art. hb4-4, 54.
In our opinion, the put-pose of this statute was to ensure that
competitive bidding statutes would wt be applied to the employment of
persons in the enumerated professions. The emergency clause ciearly
expresses this intent:
Sec. a. The fact that tile selection of
certified public acco”ntants. architects,
physicians. optometrists. surgeons and
professional engineers on the basis of the lowest
bid places a premium on incompetence and is the
most likely procedure for -selecting the least able
or qualified and the most incompetent practitioner
for the performance of services vi,tally affecting
the health, welfare and safety of the public and
that, in spite of repeated expressions of the
legislature excepting such professional services
from statutes providing for competitive bidding
procedures, some public officers continue to apply
competitive bidding procedures to the selection of
such professional personnel, cr‘eaten an emergency
of the greatest public importance to the health.
safety and welfare of the people of Texas and an
imperative public necessity requiring that the
Consritutional Rule that bills be read on three
several days in each House bc suspended. and such
Rule is hereby suspended, and this Act shnil take
eii-,tct from ;~nd after its pnssngc. and it is so
enacted.
Acts 1971, h.‘nd I.ef., ch. 38, $8, at 72. The c:;;erRt’ncy c Lnusc nay be
considered in ascertaining the legi~slativc intent .ZXpr~SSed in a
statute. Houston Belt Terminai & Ry. Co. v. Clark, 143 S.W.Zd 373
(Tex. 1940).
Article htG+-4. V.T.C.S.. did not impliedly repeal every statute
authorizing the appointment of a physician to a pclblic service
position carrying little or no compensation. See. e.g., ?ledical
Practices Act, 552.05, 2.06, Acts 1981, 1st C.S., ch. 1, §l
(qualifications nnd compensation of members of Board of tledicnl
I:.xamiuers). Section 3 of article bh4-4, V.T.C.S.. clearly states that
professional Fees must not “exceed the maximum provided by any state
law.” Article 44RO, V.T.C.S., pl-ov:ides that visiting physicians shall
scrvc withalt p%~y irom the county. ‘l‘tlnl~, the provisions of article
664-4, V.T.C.S., 2nd article i4t40, v.1‘.c:.s., m;,” hr cvnstrued in
harwny . hrtirlc 664-4, V.T.C.S., prcvtwts puhiic officials from
cnRag:i ng tt,t: :,t.ltnl professional SL~TV ic.vs aw crmkp<‘ti tive hids and
Honorable Dan V. Heard - Page 0 (MU-393)
restricts their discretion in setting compensation by requiring
reasonable fees. It has no bearing where the legislature has enacted
a statute setting or denying compensation for physicians and other
professionals.
We conclude that the board of managers of a county hospital may
not pay physicians for treating indigent patients at the hospital.
SUMMARY
Article 4480. V.T.C.S., prevents a county
from paying doctors on the medical staff of the
county hospital for treating indigent patients at
the hospital.
,&m
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINlON COMMITTEE
SUSJll II. Cnrrison, Chairman
Jon I!ible
Rick Cilpin
J im Moe 11 inger
firuse Youngblood
p. 133x