Untitled Texas Attorney General Opinion ( 1974 )

THEA'ITORNEYGENERAL
AUSTIN. TPJXAS 78711
The Honorable David Wade, M. D. Opinion No. H- 291
Commissioner
Texas Department of Mental Health and Re: Liability of community
Mental Retardation centers for mental
Box 12668 Capitol Station health and mental retard-
Austin, Texas 78711 ation services for injuries
to employees, and related
Dear Dr. Wade: questions
You have asked our opinion on two questions which are:
“(1) Will Community Centers for Mental Health and
Mental Retardation Services be required to comply
with the provisions of Article 8309h, V.A. C.S.?
“(2) In an action to recover damages for injury to or
death of an employee in the course of his employment,
are the defenses enumerated in Section 1 of Article
8306. V. A. C. S., available to a Community Center for
Mental Health and Mental Retardation Services which
elects not to provide workman’s compensation benefits
under Section 3.08 of Article 5547-203, V. A. C. S. 7 ”
Article 8309h, $ 2(a), Vernon’s Texas Civil Statutes, provides:
“Sec. 2. (a) All political subdivisions of this state
shall become either self-insurers, provide insurance
under workmen’s, compensation insurance contracts or
policies, or enter into interlocal agreements with other
political subdivisions providing for self-insurance, extend-
ing workmen’s compensation benefits to their employees. ”
p. 1357
The Honorable David Wade, page 2 (H-291)
Article 8309h was enacted pursuant to Article 3. 5 60, Texas Constitution,
and becomes effective on July 1, 1974, except as provided in § 2(b).
Section I of the article, the definitions section, provides in part:
“Section 1. The following words and phrases as
used in this article shall unless a different meaning is
plainly required by the context, have the following mean-
ings, respectively:
“(1) ‘Political subdivision’ means a county, home-
rule city, a city, town, or village organized under the
general laws of this state, a special district, a school
district, a junior college district, or any other legally
constituted political subdivision of the state. ”
Community Centers for Mental Health and Mental Retardation Services
are established by counties, cities, hospital districts, school districts or
combinations of these bodies. If organized by a single governmental entity
a community center is governed by the governing board of that entity or by
an appointed board of trustees. If organized by a combination of governmental
entities, a community center will be governed by an appointed board. Article
5547-203, 5 3.02, VJ.:T. C.S. The centers are funded from both local and state
sources. Article 5547-203, 5 $3.09, 3.10, 3.14, V. T. C. S. ; Article 5547-204,
§ 4.03; General Appropriations Act 1974-1975, Acts 1973, 63rd Leg., ch. 659,
p. 1786, 1829.
Community centers have been held to be political subdivisions under
statutes concerning social security coverage, Attorney General Opinion M-
149 (1967) and unemployment compensation coverage, Attorney General Opinion
M-1033 (1971). But they were determined to be neither “departments of the
state government ‘I for the purposes of Board of Control purchasing require-
ments, Attorney General Opinion M-316 (1968). nor “units of government” for
the purpoqes of the Texas Tort Claims Act, Attorney General Opinion M-538
(1969). The latter opinion held that community centers were merely component
parts of units of government. Attorney General Opinion ~-1266 (1972) held that
community centers are agencies of the state, although not state agencies. That
opinion distinguished its holding from that in Attorney General Opinion M-538
(1969) and said:
pa 1358
I
,
The Honorable David Wade, page 3 (H-291)
“A community center is not a political, subdivision
except where by statutory definition it is made so for cer-
tain purposes. . . . ”
Although under ordinary circumstances a community center could
not be said to be made a political subdivision by the statutoiy definition in
Article 8309h, which when stripped to its essentials is that ” ‘[plolitical
subdivision’ means . . . any . . . legally constituted political subdivision
of the state, ” Article 5547-203, 5 3.08, V. T. C. S., relating to community
centers for mental health and mental retardation services, compels a dif-
ferent result. Section 3.08 provides:
“Sec. 3.08. The board or director may employ
and train personnel for the administration of the various
programs and services of a community center. The
board shall provide appropriate rights, privileges and
benefits to the employees of a community center consistent
with those rights, privileges and benefits available to
employees of the governing bodies which establish the
center and is authorized to provide and may provide work-
men’s compensation benefits. The number of employees
and their salaries shall be as prescribed by the board of
trustees, as approved by the governing body or bodies of
the local agency establishing the center. ”
The most recent amendment to this section was by the 63rd Legislature, and
the sole effect of that amendment was the addition of the reference to work-
men’s compensation benefits. Article 8309h and Article 5547-203, $3.08
are in pari materia and must be construed together. 53 Tex. Jur. 2d, Statutes
§ 186. Another factor suggesting that the statutes must be considered together
is the fact that they were enacted during the same session of the Legislature,
and each LegislPture is presumed to be governed by a single spirt and policy.
53 Tex. Jur. 2d. Statutes 5 105. Therefore, it is our conclusion that the legis-
lative definition of political subdivisions for the purposes of Article 830911 is
intended to include community centers for mental health and mental retarda-
tion services, and it is our opinion that community centers will be required
under Article 8309h to provide workmen’s compensation benefits for their
employees.
p* 1359
The Honorable David Wade, page 4 (H-291)
Article 5547-203, 5 308, permitting community centers to provide
workmen’s compensation benefits, is already effective. Article 8309h,
which we have determined requires community centers to provide work-
men’s compensation benefits for their employees, will become effective
between July I, 1974, and June 30, 1977, depending on the budget of each
center. Article 8309h, $2(b). V. T.C.S.
Your second question is relevant to centers which decline to provide
benefits in the period in which coverage is permissive rather than manda-
tory. It is our opinion that so long as a center is not required to provide
workmen’s compensation benefits, and does not elect to do so, it does not
forfeit its common law defenses. See, Tester v. County of Terry, Texas,
353 F.Supp. 170 (N. D. Tex. 1973): Boswell v. City of Sweetwater, 341
S. W. 2d 664 (Tex. Civ. App. Eas tland, 1961. writ ref’d.); City of Dallas v.
Brown, 475 S. W. 2d 833 (Tex. Civ.App. Dallas, 1971, writ ref’d, n. r. e.);
Attorney General Opinions M-929 (1971), M-527 (1969).
SUMMARY
Community Centers for Mental Health and Mental
Retardation Services will be required to provide workmen’s
compensation benefits for their employees when Article
8309h, V. T. C. S., becomes effective, but they t-nay provide
benefits before that time. If a center elects not to provide
workmen’s compensation benefits for its employees, it will
not forfeit its common law defenses until the mandatory
provisions of Article 8309h become effective.
DAVID M. KENDALL, Chairman
Opinion Committee
pq 1360