OP TEXAS 

AURTIN. TEXAS 78711 

November 2, 1973 

The Honorable James Peavy, hi, D. 

Commissioner of Health 

Opinion No. H- 143 

Texas State Department of HeaAth 

‘Austin, Texas 78756 

: 

Dear Dr. Peavy: 

Re: The constitutionality of 

State participation in a 

federal supplemental food 

program for pregnant and 

lactating women, infants 

and children. 

You have asked us for an opinion concerning the authority of 

the Texas State Department of Health 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 in this 

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 50 and 51 of Article 

3 of the Constitution of the 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 the purposes herein described?” 

The United States Department of Agriculture 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 in low income areas and are part of low income groups considered 

to be “at nutritional risk”. It is also a mijor object of the program to 

collect and evaluate medical data which will medically identify benefits 

of such a food program. 

p. 677 
. - 

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

The requirements for eligibility of local agencies are that the 

agency provide health service to residents of an area. in which a 

substantial proportion of the persons have low incomes; that is,serve 

a population of women, 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 financ ed entirely 

with federal funds which will be deposited in the State Treasury fo 

be disbursed in accordance with your directions and in accordance 

with the above referenced regulations. No matching State fund,s are 

involved. Your authority to participate in this 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 in the interest of the public healthand the enforcement 

of public health laws. ” 

The appropriation of the money received is covered by 5 19, 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 51 of Article 3 of the Texas Constitution. Section 50 prohibits the 

giving or lending of the 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 in connection with this program. 

Section 51 provides, “The Legislature shall have no power to make 

any grant or authorize the making of any grant of public 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 of Austin, 331 S. W. 2d 737 

(Tex. 1960). Compare Attorney General Opinions C-464 (1965) and M-274 

(1968). 

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

It seems clear to us that a food 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) in which this office held that 5 51 of Article 3 would not prohibit 

the use of federal 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, in the event 

federal funds ares made 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 in the 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 of providing 

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