# OP TEXAS AURTIN. **TEXAS** 

### 78711

November 2, 

### 1973 The Honorable James Peavy, hi, D. Commissioner of Health Opinion No. 

### H- 143 Texas State Department 

### ofHeaAth
‘Austin, Texas 78756 :
Dear Dr. Peavy: Re: The constitutionality of State participation ina 

### federal supplemental food program for pregnant and lactating women, infants 

### andchildren. You have asked 

### usfor anopinion concerning the authority 

### of the Texas State Department 

### ofHealth to receive and distribute federal funds pursuant to the Child Nutrition 

### Act (42 USC 137; et seq. )as amended by Public 

### Law**92-433,** for the purpose of providing a special supplemental food program for women, infants and children inthis State. You advise us that: “The Comptroller of Public Accounts has ques,tioned whether or not the disbursement of the funds herein described would violate Sections 50and 51ofArticle 3of the Constitution ofthe State of Texas. Therefore, the following question is ‘submitted for your consideration.

“In the event that federal funds are made available to this Agency, may these funds be lawfully expended 

### for thepurposes herein 

### described?” The United States Department ofAgriculture Regulations governing the disbursement and use of these funds (See 38 Federal Register 18447- 18451) show that basically this program is designed to distribute nutritional food to pregnant or lactating women, and to children under age 4 who live inlow income areas and are part of low income groups considered to be 

### “**at**nutritional risk”
. Itis also a

### mijor object of the program to collect and evaluate medical data which will medically identify 

### benefits ofsuchafoodprogram.

p. 677. -

The Honorable James Peavy, M. D., page 2 (H-143)

The requirements for eligibility oflocal agencies are that the agency provide health service to residents ofan area. inwhich a substantial proportion of the persons have low incomes; that is,serve a population ofwomen, infants or children which is “at nutritional risk”; that its staff include competent professionala; that it.have personnel and expertise and equipment necessary for performing the tests; and that it maintain adequate medical records. It is our understanding that this program will be financed entirely with federal funds which will be deposited inthe State Treasury fo be disbursed inaccordance with your directions and inaccordance with the above referenced regulations. No matching State fund,s are involved. Your authority to participate inthis program emanates from Article 4418f, V. T. C.S., which provides: “It shall be lawful for the State Department of Health to accept donationa andcontributions, to be expended inthe interest of the public healthand the enforcement ofpublic health laws. ” The appropriation of the money received is covered by 519, Article 5, House Bill 139, Regular Session, 63rd Legislature (T,he Appropriations Act for fiscal 1974 and 1975) which generally provides that State agencies rece’iving federal funds shall use said funds for the purposes intended. Compare Attorney General Opinion C-530 (1965). You advise us that the Comptroller assigns his reluctance to $$ 50 and 51ofArticle 3ofthe Texas Constitution. Section 50prohibits the giving or lending ofthe credit of the State for private purposes. We do not think it is controlling since the credit of the State is not being given or loaned inconnection with this program. Section 51provides, “The Legislature shall have nopower to make any grant or authorize the making ofany grant ofpublic moneys to any individual, association of individuals, municipal or other corporations whatsoever. ” It is well settled that this prohibition does not apply to the use of public funds for public purposes. State v. City ofAustin, 331S.W. 2d 737 (Tex. 1960). Compare Attorney General Opinions C-464 (1965) and M-274 (1968).

p. 678The Honorable James Peavy, page 3 (H-143)

It seems clear to us that afood program of this type for indigent and needy children and pregnant and lactating women, together with the compilation of relevant data as to the results of this prog~ram, constitutes a public purpose. See Attorney General Opinion No. C-584 (1966) inwhich this office held that 551ofArticle 3would not prohibit the use offederal and matching State funds for the establishment of community centers to provide free health services to indigent persons. Accordingly, the answer to your question is that, inthe event federal funds aresmade available to your department pursuant to the Child Nutrition Act of 1966 as amended, for the purposes discussed hereinabove, such funds may be lawfully expended for those purposes. SUMMARY The use of federal funds deposited inthe State Treasury for expenditure at the election of the State Health Department under the Federal Child Nutrition Act of 1966, as amended, for the purpose ofproviding a supplemental food program for pregnant and lactating women, infants and children, is not prohibited by any provision of the Texas Constitution. Very truly yours,

Attorney General of Texas VED:

DAVID M. KENDALL, Chairman Opinion Committee

p. 679