. . 

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 and Mental 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. 

In your letter of November 9, 1965, you requested an 

Attorney General's Opinion with reference to the following 

question: 

"May the new Texas Board of Mental Health 

and Mental 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 and marketable title to 

As pointed out in your letter, Section lofsaid Article 

3232~ authorize8 the Board of Texas State Hospitals and 

Special Schools, which was abolished effective September 1, 

1965, In its discretion to determine land in excess of the 

needs of th,e operation of the Abilene State School and 

thereafter sell same for 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 and thereafter sell and convey 

for cash any land which it has determined Is 

no longer needed for the groper operation of 

the Abilene State School. 

Sections 2 through 5 of 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 and Board of Control, advertising and receiving bids, certain reservations of royalty 

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. . 

Mr. Jess M. Irwin, Jr., page 2 (c-564) 

interests, and execution of deeds by “the chairman of 

the Board for Texas State Hospitals and Special Schools 

or a member of the central office staff, authori5ed by 

an appropriate resolution of the Hospital Board. 

The Mental Health and Mental 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 and creates the Texas Board of Mental Health and 

Mental Retardation to “formulate the basic and general 

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 a Chairman and 

appointment of a Commissioner by the Board and for appointment of two Deputy Commissioners by the duly appointed Commissioner. The responsibility for the effective administration of the programs and services of 

the Department is given to the Commissioner by Section 

2.12(a) of the Act. Said Act further provides for a 

staff under the direction of the Commissioner and Deputy 

Commissioners. 

Said Act does not provide for the repeal of said 

Article 3232~. 

One of the stated purposes of said Act is ‘. . . 

to provide for the effective administration and coordination of mental health services at the State and local 

levels, and to provide, coordinate, develop, and improve 

service: for the mentally retarded persons of this State 

. . . . 

Said Act contains no clear language specifically 

authorizing the sale and conveyance of excess land of the 

Abilene State School by the newly formed Texas Department 

of Mental Health and Mental Retardation, as Is found in 

said Article 3232c, which has apparently raised a question 

in your mind regarding said Department’s authority to make 

such sales and convey marketable title. 

The following rule has been long established in this 

State: 

“When an old law is superseded by a new 

one, and the latter is vague and indefinite 

in any of 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 and Planters Bank of Sherman, 

69 Tex. 50, 6 S.W. 675 (1887). 

Nothing In the Mental Health and Mental Retardation 

&& evidences any intent to change the provisions of 

Article 3232~. On the 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 and Special Schools . . . 

are transferred to the Texas Department 

of Mental Health and Mental 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, and personnel of the r . . 

Board for Texaf State Hospitals and Special 

Schools. . . . 

If said Act, by the aforementioned language of Section 

2.16(a.) does not expressly clothe the Texas Department of 

Mental Health and Mental Retardation with the power previously gfven to the Board for Texas State Hospitals and 

Special Schools by said Article 3232~ to sell and convey 

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) and the caption; and the 

courts have held in this State that "that which is Implied 

in a statute is as much a part of it as what .is expressed." 

McCamey v. Hollister Oil Company, 241 S.W. 689 (1922), 

aff. 274 S.W. 562 (1925). 

Furthermore, by considering Section 2.16(b) of said 

Act, which provides that "all land, buildings, facilities, 

and property . . . used by the Board for Texas State 

Hospitals and Special Schools . . . are transferred to 

the T3xas Department of Mental Health and Mental Retardation, and Section 2.17 of said Act which provides that 

"the Department shall have 

of... 

exclusixe management and control 

the Abilene State School, the legislative intent 

in enacting the Mental Health and Mental Retardation Act 

appears to embrace a transfer 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 and have held that, 

in determining legislative intent, a court "should not 

look alone to any one phrase, clause, or sentence of 

the act, but to the entire act; and this includes capElfo;;lCand) the body of the act. . . . Reed v. City 

f 223 S.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 and the other express provisions and caption 

of the Mental Health and Mental Retardation Act but also 

(1) from what is implied thereln, and (2) by reference 

to the powers of the former Board for Texas State Hospi- 

.tals and Special Schools under said Article 3232~. 

It follows that the newly created Texas Board of 

Mental Health and Mental Retardation may sell and convey 

for cash excess land of the Abllene State School under 

the provisions of Article 3232~ and, with reference to 

such sales, authorize by appropriate 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 and Special 

Schools, which authority has been transferred to said 

Texas Department of Mental Health and Mental Retardation 

by virtue of the Bental Health and Mental Retardation 

&&. 

The Board of Mental Health and Mental 

Retardation created by the Mental 

Health and Mental Retardation Act (H.B. 

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

1965) is authorized under and by virtue 

of said Act in its discretion to determine land in excess of the needs of the 

operation of the Abilene State School 

and thereafter sell and convey 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 

by appropriate 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. mess M. Irwin, Jr., page 5 (c-564) 

Very truly yours, 

WAGGONER CARR 

Attorn y General of Texas 

1 

Assistant Attorney General 

CDJjr/vmo 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Milton Richardson 

David Longoria 

Malcolm Quick 

Phlllip Crawford 

APPROVED FOR THE ATTORNEY GENERAL 

By: T. B. Wright 

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