. .

EA NEY'GENERAL

AUSTIN ~~.TEXAS December 10, 1965

Mr. Jess M.Irwin; Jr. Opinion No. c-564 Executive Director Texas Department of Mental RE: Whether the Texas Board Health andMental Retardation of Mental Health and Box S, Capitol Station Mental Retardation is Austin, Texas 78711 authorized to dispose of land at the Abilene State School under the provisions of Article Dear Mr. Irwin: 3232c, V.C.S. Inyour letter of November 9, 1965, you requested an Attorney General's Opinion with reference to the following question: "Maythe newTexas Board of Mental Health andMental Retardation under the procedures outlined in Senate Bill 133 (Art. 3232c, V.C.S.)

. . . dispose of land at the Abllene State School and such land?" convey good andmarketable title to

Aspointed out in your letter, Section lofsaid Article 3232~ authorize8 the Board of Texas State Hospitals and Special Schools, which wasabolished effective September 1, 1965, In its discretion to determine land in excess of the needs of th,eoperation of the Abilene State School and thereafter sell samefor cash, as follows:

"The Board for Texas State Hospitals and Special Schools is hereby authorized in Its discretion to determine land in excess of the needs of the operation of the Abilene State School andthereafter sell andconvey for cash any land which it has determined Is nolonger needed for the groper operation of the Abilene State School. Sections 2through 5of said Article 3232~ provide respectively, in connection with any sale of excess land of the Abllene State School, for certain notice to the State Highway Department andBoard of Control, advertising and

### receiving bids, certain reservations of royalty -2721-. .

Mr. Jess M.Irwin, Jr., page 2 

### (c-564)

interests, andexecution of deeds by “the chairman of the Board for Texas State Hospitals andSpecial Schools or amemberof the central office staff, authori5ed by anappropriate resolution of the Hospital Board. TheMental Health andMental Retardation Act (H.B. #3, ch. 

### 67, Acts of the 59th Leg., R.S., 

### 19651, which 

### - abolishes the Board for Texas State Hospitals-and Special Schools andcreates the Texas Board of Mental Health and Mental Retardation to “formulate the basic andgeneral policies” for the Texas Department of Mental Health and Mental Retardation formed under the Act, became effective on September 1, 

### 1965. Said Act provides for election of aChairman and appointment of aCommissioner by the Board and for appointment of twoDeputy Commissioners by the duly appointed Commissioner. Theresponsibility for the effective administration of the programs and services of the Department is given to the Commissioner bySection 2.12(a) of the Act. Said Act further provides for a staff under the direction of the Commissioner andDeputy Commissioners. Said Act does not provide for the repeal of said Article 3232~. Oneof the stated purposes of said Act is ‘

. . . to provide for the effective administration andcoordination of mental health services at the State and local levels, andto provide, coordinate, develop, andimprove service: for the mentally retarded persons of this State

. . . . Said Act contains noclear language specifically authorizing the sale andconveyance of excess land of the Abilene State School by the newly formed Texas Department of Mental Health andMental Retardation, as Is found in said Article 3232c, which has apparently raised aquestion in your mindregarding said Department’s authority to make such sales andconvey marketable title. Thefollowing rule has been long established in this State:

“Whenanold lawis superseded bya

### new one, andthe latter is vague andindefinite in anyof its provisions, it is not improper to refer to the former to settle the meaning
-2722-Mr. Jess M.Irwin, Jr., page 3 (c-564)

of such provisions.' S. D. Steadman v. Merchants andPlanters Bankof Sherman, 69Tex. 50, 6S.W. 675 (1887). Nothing In the Mental Health andMental Retardation && evidences any intent to change the provisions of Article 3232~. Onthe contrary, Section 2.16(a) of said Act providesin part as follows:

"All powersj duties, and functions

. . . relating to the administration of mental health or mental retardation services, previously vested in the Board for Texas State Hospitals andSpecial Schools

. . . are transferred to the Texas Department of Mental Health andMental Retardation." Similar language is also included in the caption to the Act, as follows:

"AnAct.

. transferring to the new department certain powers, duties, functions, property, records, andpersonnel of the r
. . Board for Texaf State Hospitals andSpecial Schools.

. . . If said Act, by the aforementioned language of Section 2.16(a.) does not expressly clothe the Texas Department of Mental Health andMental Retardation with the power previously gfven to the Board for Texas State Hospitals and Special Schools by said Article 3232~ to sell andconvey excess land of the Abilene State School, then clearly the implication of such power is contained in the quoted language of both Section 2.16(a) andthe caption; andthe courts have held in this State that "that which is Implied in astatute is as muchapart of it as what.is expressed." McCameyv. Hollister Oil Company, 241S.W. 689 (1922), aff. 274 S.W. 562 (1925). Furthermore, byconsidering Section 2.16(b) of said Act, which provides that "all land, buildings, facilities, andproperty

. . .used by the Board for Texas State Hospitals andSpecial Schools

. . . are transferred to the T3xas Department of Mental Health andMental Retardation, andSection 2.17 of said Act which provides that "the Department shall have of... exclusixe management andcontrol

the Abilene State School, the legislative intent in enacting the Mental Health andMental Retardation Act appears to embrace atransfer of authority under said -2723-Mr. Jess M.Irwin, Jr., page 4 (C-564)

Article 3232~ to the Texas Department of Mental Health and Mental Retardation. Texas courts have consistently given effect to legislative intent andhave held that, in determining legislative intent, acourt "should not look alone to any one phrase, clause, or sentence of the act, but to the entire act; andthis includes capElfo;;lCand) the body of the act.

. . . Reed v. City

f 223S.W.2d 247, (Tex.Civ.App., 1949, error ref. Therefore, the answer to your question is determined not only from the express words of Sections 2.16(a) and (b) and 2.17 andthe other express provisions andcaption of the Mental Health andMental Retardation Act but also (1) from what is implied thereln, and (2) byreference to the powers of the former Board for Texas State Hospi- .tals andSpecial Schools under said Article 3232~. It follows that the newly created Texas Board of Mental Health andMental Retardation maysell and convey for cash excess land of the Abllene State School under the provisions of Article 3232~ and, with reference to such sales, authorize byappropriate resolution the execution of deeds to such land by the Commissioner in accordance with the authority therein granted to the abolished Board for Texas State Hospitals andSpecial Schools, which authority has been transferred to said Texas Department of Mental Health andMental Retardation by virtue of the Bental Health andMental Retardation &&.

TheBoard of Mental Health andMental

Retardation created bythe Mental Health andMental Retardation Act (H.B. #3, ch. 67, Acts of the 59th Leg., R.S. 1965) is authorized under andbyvirtue of said Act in its discretion to determine land in excess of the needs of the operation of the Abilene State School andthereafter sell andconvey for cash any land which it has determined is no longer needed for the proper operation of the Abilene State School and, with reference to such sales, to authorize byappropriate resolution the execution of deeds to such land by the Commissioner in accordance with all of the provisions for sale of such land contained in Article 3232~ (V.C.S.). -2724-or. messM.Irwin, Jr., page 5 (c-564)

Very truly yours, WAGGONER

CARR Attorn yGeneral of Texas 1

Assistant Attorney General CDJjr/vmo APPROVED: OPINIONCOMMITTEE W.V. Geppert, Chairman Milton Richardson David Longoria Malcolm Quick Phlllip Crawford APPROVED

FORTHEATTORNEY GENERAL By: T. B. Wright

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