# TheAttorney General ofTexas

November 8, 1977 JOHN L.HILL AttorneyGeneral

Honorable Joe Resweber

Harris County Courthouse Houston, Texas 77002 Opinion No. H-1087

Re: Construction and maintenance of a nondenominational chapel Dear Mr. Resweber: at apublic hospital.

You inquire whether a nondenominational chapel may be built with private funds at ahospital owned and operated by theHarris County Hospital District. If itmay be built, you inquire whether the Hospital District may maintain it.
The Harris County Hospital District was created toprovide medical and hospital care forneedy inhabitants of the county. Tex. Const. art. 9, § 4;V.T.C.S. art. 4494n: see Attorney General Opinion H-454 (1974). InAttorney General Opinion M-1255 (1972), this office considered whether the Harris County Hospital District could employ chaplains. Noting the contributions chaplains could make toward dealing with the psychological and social aspects of-illness,and the long history of chaplaincies inTexas state hospitals, the opinion concluded that theHospital District had authority under its statute to employ them. In our opinion, the Board of Hospital Managers could determine that the construction andmaintenance of ahospital chapel would benefit patients and could accept donations for constructions of the chapel as "not inconsistent with proper management and objects" of the district. SeeV.T.C.S. art. 4494n, 9 15. However, as apublic bodymnanced by public funds, Arseneau v. Tarrant County Hospital Dist., 408 S.W.2d 802 (Tex.Civ. APP. -- Fort Worth 1966, writ ref'd n.r.e.); Attorney General Opinion H-454 (1974), its actions must not violate state and federal constitutional provisions on the separation of church and state. Article 1, section 6of the Texas Constitution provides inpart:
All men have anatural and indefeasible

right toworship Almighty God according to

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the dictates of their own consciences. NO man shall be compelled toattend, erect or support any place of worship, or tomaintain anyministry against his consent.
Article 1, section 7provides as follows:

Nomoney shall be appropriated, or drawn from the Treasury for the benefit of any sect, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purpose. Churchv. Bullock, 109 S.W. 115 (Tex. 19081, the only relevant case construing these provisions, does not indicate that construction andmaintenance of the chapel would violate them. In fact, the court noted approvingly that religious services were at that time held in the chapel of the State University and in other public buildings. Several Attorney General Opinions on similar questions indicate that the construction of a nondenominational chapel for voluntary use in apublic hospital would notviolate the Texas Constitution. Attorney General Opinions WW-1409, WW-1269 (1962);V-940 (1949). Inour opinion, the districtmay build anondenominational hospital chapel with donated funds andmay thereafter maintain the chapel without violating article 1, sections 6and 7of the Texas Constitution. The courts of other states, construing similar provisions of their own constitutions, have approved the donation of nondenominational chapels topublic institutions. Reichwald v. Catholic Bishop of Chicago, 101N.E. 266 (111. 1913) (chapelat County poor farm); Peopre ex rel. New York League for Separation of Church and State v. Lyons, 21N.Y.S.Zd 250 (Sup.Ct. 1940) (prison chapel); State v. Williamson, 347 P.2d 204 (Okla. 1959) (chapel at state orphanage).
The First Amendment to the United States Constitution which applies to the states by virtue of the Fourteenth Amendment provides inpart that

Congress shallmake no law respecting an establishment of religion, or prohibiting the free exercise thereof.

. . . TheUnited States Supreme Court has not dealt with a question like the one you present; however, opinions dealing with other issues have referred to circumstances under which the government could build andmaintain anondenominational chapel forvoluntary use. In School District ofAbington Township v. Schempp, 374U.S. 203 (1963), the court determined that relip. 4464Honorable Joe Resweber -Page 3 (~-1087)

gious exercises inapublic school we;, unconstitutional, but at the same time, some of the opinions indicated that such practices asproviding chaplains and churches forpersons in themilitary and inprisons were constitutional. 374U.S. at 203, 213, 296-99, 306. Justice Brennan ina concurring opinion stated that such practices conceivably violated the establishment clause, but probably could not be struck down without serious interference with religious liberties protected by the first amendment. 374U.S. at 296-97. Inour opinion, the courts would hold that the hospital district may, consistently with the establishment clause, provide a chapel forvoluntary use by itspatients, who are cut off from other places of worship at a timewhen theymay have particular need for the consolations of religion.

A fourpart test has been developed fordetermining whether the establishment clause has been violated:

First, does theAct reflect a secular legislative purpose? Second, is the primary effect of theAct to advance or inhibit religion? Third, does the administration of theAct foster an excessive government entanglement with religion? Fourth, does the implementation of the Act inhibit the free exercise of religion?
Tilton v. Richardson, 403U.S. 672, 678 (1971);Attorney General Opinion H-511 (1975). Where a free exercise claim is not at issue, the fourth part is sometimes dropped from the test. See, -, Committee for Public Education &Religious Liberty v. Kuist, supra; Letter Advisory No. 128 (1977). See also Attorney General Opinion M-1255 (1972)at 12;Annot., 36A.L.R.3d 1256 (1971).

We believe the construction andmaintenance of ahospital chapel forvoluntary use reflects a secular purpose in that it will assist somepatients tomaintain peace ofmind in the face of serious illness, thereby facilitating treatment. SeeAttorney General Opinion M-1255 (1972)at 8. Itsprimary effectis neither to advance nor inhibit religion but to avoid both of those effects. We do not believe that the employment of chaplains and maintenance of a chapel ina public hospital foster excessive government entanglement with religion, inview of the need topermit the free exercise of religion by hospital patients. Finally, theprovision of a chapel does not inhibit the free exercise of religion but in fact tends toprevent its inhibition. Since the chapel is tobe nondenominational, itwill not be used topromote one religion and inhibit another.

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Inour opinion, the Harris County Hospital District may constitutionally permit the construction of anondenominationa chapelwith donated funds andmay thereafter maintain it for voluntary use. You have asked a legal question based on very few factual details, and we cannot pass on any fact situation beyond that presented here.
SUMMARY
The Harris County Hospital District has statutory authority to construct and maintain ahospital chapel tobe built with donated funds andmay do so consistently with state and federal constitutional provisions on separation of church and state.

HN L.HILL ttorney General of Texas

C. ROBERT HEAT%, Chairman Opinion Committee jst

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