THE ATTORNEY GENERAL OF TEXAS

June 2, 1989

Honorable D. C. (Jim)Dozier Opinion No. JM-1052 Montgomery County Attorney Courthouse Re: Responsibilities of the Conroe, Texas 77301 Montgomery County Hospital District with regard to indigent health care (RQ-1625)

DearMr. Dozier:

You ask anumber of questions about article IX, sections 9and 13, of the Texas Constitution. Because your questions require a careful reading of the two constitutional provisions you ask about, wewill discuss the language and history of those two provisions before we address your specific questions.
Article IX, section 9,provides inpart:
The Legislature may by lawprovide for creation, establishment, maintenance operation ofhospital districts composed one ormore counties or all or any part

. ... . .the and of of one or more counties witn power to issue bonds for the purchase, construction, acquisition, repair or renovation of buildings and improvements and equipping same, for hospital purposes; providing for the transfer to thehospital district of the title to any land, buildings, improvements and equipment located wholly within the district which **may** be jointly or separately owned by any city, town or county, providing that anv district socreated shall assume full resnonsibilitv forvrovidina medical and hosvital care for itsneedv inhabitants and assume the outstanding indebtedness incurred **by** cities, towns and counties for hospital purposes prior to the creation of the district, . . . providing that after its creation no other municivalitv or volitical subdivision shall have the vower to levy taxes or issuebonds or other obliaations for

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hosvital vurnoses or for vrovidina medical gare within the boundaries of the district . . . . (Emphasis added.)

See also Tex. Const. art. IX, 54 (a 1954 providing for the creation of county-wide hospital incounties with apopulation of 190,000 ormore). amendment districts

Article IX, section 9, which was adopted

. ._. _. . .in 1962, contains two speciric statements regarding tne obligations ofhospital districts: (1)hospital districts are to assume full responsibility forproviding medical andhospital care fortheir needy inhabitants, and (2)hospital districts are to assume the outstanding indebtedness incurred before the creation of the district forhospital purposes by cities, towns and counties within the district. Article IX, section 9, also contains aprohibition applicable to other political subdivisions: It prohibits other political subdivisions within the boundaries of ahospital district from expending funds forany type ofmedical care, not justmedical care forthe needy.

In 1966 this office issued an opinion that considered whether acounty thatwas included within the boundaries of a hospital district could spend money to establish a community center for mental health andmental retardation services in accordance with the provisions of article 5547-203, V.T.C.S. Attorney General Opinion C-646 (1966). The opinion concluded that mental health and mental retardation services constituted medical care and that therefore a county that lay within the boundaries of a hospital district could not spendmoney to establish a facility to provide such services.

The next year, apparently in response to Attorney General Opinion C-646, the voters adopted article IX, section 13, of the constitution, which provides:

Notwithstanding any other section of this article, the Legislature inproviding for the creation, establishment, maintenance and operation of a hospital district, shall not be required to provide that such district shall assume full responsibility for the establishment, maintenance, support, or operation ofmental health services ormental retardation services including the operation of any community mental health centers, community mental retardation centers or community mental health and mental - tardation centers which may exist or ?e

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thereafter established within the boundaries of such district, nor shall the Legislature be required to provide that such district shall assume full responsibility of public health department units and clinics and related public health activities or services, and the Legislature shall not be required to restrict the power of any municipality or political subdivision to levy taxes or issue bonds or other obligations or to expend public moneys for the establishment, maintenance, support, or operation of mental health services, mental retardation services, public health units or clinics or related public health activities or services or the operation of such community mental health or mental retardation centers within the boundaries of the hospital districts; and unless a statute creating ahospital district shall expressly prohibit participation by any entity other than the hospital district in the establishment, maintenance, or support of mental health services, mental retardation services, public health units or clinics or related public health activities within or partly within theboundaries of any hospital district, any municipality or any other political subdivision state-supported entity within the hosp?Eal district may participate in the establishment, maintenance, and support of mental health services, mental retardation services, public health units and clinics and related public health activities and may levy taxes, issue bonds or other obligations, and expend public moneys for such purposes asprovided by law.

In short, article IX, section 13,created an exception from the article IX, section 9,prohibition onthe expenditure of funds for medical care by political subdivisions within ahospital district. Wewill now turn to your specific questions.

Your first question is:

What isthe definition of the term 'medical care' as anticipated by article IX, section 9 of the Texas Constitution?
Article IX, section 9,uses the term "medical care" twice. First, it requires hospital districts to assume full

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responsibility for providing medical care for its needy inhabitants. Second, itprohibits political subdivisions within ahospital district from spending funds on medical care.1

In regard tomedical care for the needy, it is the responsibi~lityof the board ofdirectors of a hospital district todetermine whatmedical care istobe provided pursuant to article IX, section 9.2 Attorney General Letter Opinion M-88-33: B Attorney General Opinions **M-1154 (1972)**  **: M-85**  (1967):C-334 (1964); see aenerallv Attorney General Opinions JM-815, **JM-746** (1987). Similarly, the question of whether an expenditure by a political subdivision within ahospital district isan expenditure for medical care must be determined on acase-by-case basis. See aenerally Attorney General Opinions H-1279 (1978) (county in a hospital district may provide ambulance service); **C-646 (1966)** 

**.**
Your second question is:

What is the definition of 'public health units or clinics' as anticipated by article IX, section 13of the Texas Constitution? Again, whether aparticular establishment isapublic health unit or clinic within themeaning of article IX, section 13, of themTexas Constitution isadetermination thatwould have tobemade on a case-by-case basis.

Your third question is:

Does each of those services named in the above-referenced sections of article IX, section 13 have to be expressly listed as being prohibited inthe enabling act inorder

**1.** As wepointed out, the obligation placed on hospital districts, i.e., to assume full responsibility for medical care forneedy inhabitants, isnarrower than the prohibition placed on other political subdivisions within the district against spending their funds onmedical care generally, not justmedical care for indigents.

**2.** The legislature has authority to determine the health-care services ahospital district must provide, Tex. Const. art. IX, § 9A, but todate the legislature has not exercised that authority.

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tobeprohibited under the terms of article IX, section 9? Ordo the services listed in article IX, section 13 constitute the definition of the term 'medical care*? Certainly, the phrase '. . . public health units or clinics . . .I anticipates the providing of some form ofmedical care. Apparently you are asking whether aprovision ina hospital district's enabling statute prohibiting a subdivision political

within a hospital district from medical care issufficient to providing suspend any authority such a political subdivision might otherwise have toprovide mental health ormental retardation services orpublic health units or clinics. Under article IX, section 9, any political subdivision within ahospital ,districtwould be subject to the general prohibition on theprovision ofmedical care. Therefore, we think that article IX, section 13, was intended to reguire‘a more specific prohibition inorder to prohibit political subdivisions within ahospital district fromproviding mental health ormental retardation services orpublic health services. We conclude therefore that the enabling statute of ahospital district must specifically mention mental health andmental retardation services and public health units and clinics in order to prohibit a political subdivision within a hospital district from exercising any authority itmight otherwise have to provide such services. & Attorney General Opinion H-454 (1974).

Your fourth question is: Referring to those services listed on attached 'Exhibit Two' and currently being performed by the Montgomery County Health Department, which of those services are prohibited by article IX, section 9of the Texas Constitution and theMontgomery County Enabling Act? Which are allowed by article IX, section 13,of theTexas Constitution?

The "Exhibit TwoI'you refer to is adescription of the services offered by different divisions of the Montgomery County Health Department, including clinics. several county health

Some of the services provided by those clinics 'may constitute "medical care." If,however, those services are provided by apublic health clinic, as they appear to be, the constitution does not prevent the county from providing those services. It is the county's responsibility, in the first instance, to determine whether the services * question constitute medical care and, if so,whether thi;
are offered by apublic health clinic.

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Your fifth question is: Depending on your definition of 'medical care,' and your reading of article IX, section 9and article IX, section 13 of the Texas Constitution and theMontgomery County Enabling Act, is the duty of providing medical care forneedy residents exclusively imposed on the Montgomery County Hospital **District?**

**It** isclear that the &&y ofproviding indigent health care isplaced on the hospital district. Neither article IX, section 13, of the constitution nor the Indigent Health Care and Treatment Act, article 4438f, V.T.C.S., imposes an obligation on political subdivisions within a hospital district toprovide indigent health care.

Your 'sixthquestion is:

Ifthe term 'medical care,' asdefined, does not include those services named in article IX, section 13,what entity has the d&y to provide those services since the applicable portion of article IX, section 13 is clearly permissive, notwithstanding the mandatory provisions of article 443613,section 4.09(b).

Your question raises several issues. First, your question raises the issue ofwhether mental health and mental retardation services and services provided by public health units and clinics constitute "medical care." We do not think that article IX, section 13,was intended to limit the definition of "medical care." Rather, itwas intended to allow political subdivisions within ahospital. district toprovide certain services, regardless of whether they constitute medical care.

YOU also note the provisions of article 4436b, V.T.C.S., which allow counties andmunicipalities to create public health districts. V.T.C.S. art. 4436b, 5 4.01. The statute also allows a county to establish a.local health department. s. 5 4.07(a). Once apublic health district
or a local health department iscreated, it& provide the following public health services:

(1)personal health promotion and maintenance services:
(2)infectious disease control and prevention services:

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(3) environmental and consumer health programs for enforcement of health and safety laws related to food,water, water control, general sanitation, andvector control;
(4)public health education and information services:
(5)laboratory services; and
(6)administrative services.

a. 54.09. In short, once acounty joins ahealth district or establishes a localhealth department, ithas a&&Y to provide certain public health services. Section 4.08(a)(l) of article 443615provides:

(1)no individual shall be denied public health services because of inability to pay for services, and themunicipality, county, or district shall make provisions for a reduced fee orno fee for individuals unable topay for services inwhole or inpart.

Your question raises the issue ofwhether sections 4.08(a) and 4.09 of article 4436b require a local health department orhealth district toprovide certain types ofmedical care to an indigent who is aresident of ahospital district. First, because it is the responsibility of a hospital district todetermine whatmedical care itmust provide to indigents, we cannot resolve the fact question of whether there is an overlap in the duty placed on a hospital district toprovide medical care for itsneedy inhabitants and the duty of acounty within the boundaries of ahospital district that has aduty toprovide public health services under article 4436b. Even ifthere isan overlap, we do not think that acounty isprohibited fromvoluntarily assumin a responsibility that isalso borne by ahospital district.3=

3. Hospital districts, county health departments, and health districts are not required to seek out indigents and toprovide them with services. Rather, theymu& provide certain services when those services are sought by indigents. Therefore, even ifthere are overlapping responsibilites in the context you ask about, neither political subdivision is in the position of being unable to fulfill itsduty because another political subdivision has already done so.

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We note that the Interlocal Cooperation Act, article 4413(32c), V.T.C.S., would permit a county (or a health district) to contract with ahospital district for the provision of services that both are obligated or authorized toprovide.

Your seventh question is:

Your paragraph onpage 2ofJM-722 states:
When a hospital district is created for the county pursuant to article IX, section 9, of the Texas Constitution, the county constitutionally does not have the power to levy or use taxes to provide for medical services for indigent residents of the hospital district, as suchpower and obligation rests exclusively on the hospital district. Anticipating possible confusion caused by references tomedical services, health care, medical care, public health clinics and public health services, is this statement consistent with your answers to the foregoing questions?
Attorney General Opinion JM-722 (1987) considered whether Jackson County was liable under the Indigent Health Care and Treatment Act, article 4438f, V.T.C.S., for health care services for indigent. residents of that county. Article IX, section 13, of the Texas Constitution was not relevant to that question. Therefore, itwas not discussed inAttorney General Opinion JM-722. Taken out of context, theparagraph you quote is incomplete inasmuch as it does notmention that article IX, section 13, of the Texas Constitution makes exceptions to certain provisions of article IX, section 9.

SUMMARY

The determination ofwhether aparticular expenditure is for medical care for purposes of article IX, section 9,of the Texas Constitution must bemade on acase-by-case basis. Similarly, the determination of whether a service constitutes mental health or mental retardation services orpublic health services must bemade on acase-by-case basis.

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The enabling statute of ahospital districtmust specifically mention mental health andmental retardation services and public health units and clinics inorder to prevent apolitical subdivision within a hospital district from exercising any authority it might otherwise have toprovide such services.
Article IX, section 13, of the Texas Constitution does not impose aduty on any political subdivision toprovide mental health or mental retardation services or public health services.
Although we cannot determine whether there is in fact an overlap, it is possible that a county that has established a local health department orhas become amember of a health district and ahospital district have overlapping responsibilities. There is no legal impediment to each of two political subdivisions having aduty toprovide the same services when those services are sought by indigents.
Very truly yo 

# J’w

k, JIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LOUMCCRHARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by SarahWoelk Assistant Attorney General

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