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) 

Dear Mr. Dozier: 

You ask a number of questions about article IX, sections 

9 and 13, of the Texas Constitution. Because your questions 

require a careful reading of the two constitutional provisions you ask about, we will discuss the language and 

history of those two provisions before we address your 

specific questions. 

Article IX, section 9, provides in part: 

The Legislature may by law provide for 

creation, establishment, maintenance 

operation of hospital districts composed 

one or more 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 the hospital 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 so created shall assume 

full resnonsibilitv for vrovidina medical and 

hosvital care for its needv 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 issue bonds or other obliaations for 

P. 5471 
Honorable D. C. (Jim) Dozier - Page 2 (JM-1052) 

hosvital vurnoses or for vrovidina medical 

gare within the boundaries of the district . . . . (Emphasis added.) 

See also Tex. Const. art. IX, 5 4 (a 1954 

providing for the creation of county-wide hospital 

in counties with a population of 190,000 or more). 

amendment 

districts 

Article IX, section 9, which was adopted 

. ._. _. . . 

in 1962, 

contains two speciric statements regarding tne obligations 

of hospital districts: (1) hospital districts are to assume 

full responsibility for providing medical and hospital care 

for their needy inhabitants, and (2) hospital districts are 

to assume the outstanding indebtedness incurred before the 

creation of the district for hospital purposes by cities, 

towns and counties within the district. Article IX, section 

9, also contains a prohibition applicable to other political 

subdivisions: It prohibits other political subdivisions 

within the boundaries of a hospital district from expending 

funds for any type of medical care, not just medical care 

for the needy. 

In 1966 this office issued an opinion that considered 

whether a county that was included within the boundaries of 

a hospital district could spend money to establish a 

community center for mental health and mental 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 spend money 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 in providing 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 of mental health services or mental 

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 

p. 5472 
Honorable D. C. (Jim) Dozier - Page 3 (JM-1052) 

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 a hospital 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 the boundaries 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 as provided by law. 

In short, article IX, section 13, created an exception from 

the article IX, section 9, prohibition on the expenditure of 

funds for medical care by political subdivisions within 

a hospital district. We will now turn to your specific 

questions. 

Your first question is: 

What is the 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 

P. 5473 
Honorable D. C. (Jim) Dozier - Page 4 (JM-1052) 

responsibility for providing medical care for its needy 

inhabitants. Second, it prohibits political subdivisions 

within a hospital district from spending funds on medical 

care.1 

In regard to medical care for the needy, it is the 

responsibi~lity of the board of directors of a hospital 

district to determine what medical care is to be 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 a hospital district is an expenditure for 

medical care must be determined on a case-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 13 of the Texas Constitution? 

Again, whether a particular establishment is a public health 

unit or clinic within the meaning of article IX, section 13, 

of them Texas Constitution is a determination that would have 

to be made 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 in the enabling act in order 

1. As we pointed out, the obligation placed on hospital 

districts, i.e., to assume full responsibility for medical 

care for needy inhabitants, is narrower than the prohibition 

placed on other political subdivisions within the district 

against spending their funds on medical care generally, not 

just medical care for indigents. 

2. The legislature has authority to determine the 

health-care services a hospital district must provide, Tex. 

Const. art. IX, § 9A, but to date the legislature has not 

exercised that authority. 

P. 5474 
Honorable D. C. (Jim) Dozier - Page 5 (JM-1052) 

to be prohibited under the terms of article 

IX, section 9? Or do 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 of medical care. 

Apparently you are asking whether a provision in a hospital 

district's enabling statute prohibiting a 

subdivision 

political 

within a hospital district from 

medical care is sufficient to 

providing 

suspend any authority such a 

political subdivision might otherwise have to provide mental 

health or mental retardation services or public health units 

or clinics. Under article IX, section 9, any political 

subdivision within a hospital ,district would be subject to 

the general prohibition on the provision of medical care. 

Therefore, we think that article IX, section 13, was 

intended to reguire‘a more specific prohibition in order to 

prohibit political subdivisions within a hospital district 

from providing mental health or mental retardation services 

or public health services. We conclude therefore that the 

enabling statute of a hospital district must specifically 

mention mental health and mental retardation services and 

public health units and clinics in order to prohibit a 

political subdivision within a hospital district from 

exercising any authority it might 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 9 of the 

Texas Constitution and the Montgomery County 

Enabling Act? Which are allowed by article 

IX, section 13, of the Texas Constitution? 

The "Exhibit TwoI' you refer to is a description 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 a public 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 a public health clinic. 

P. 5475 
Honorable D. C. (Jim) Dozier - Page 6 (JM-1052) 

Your fifth question is: 

Depending on your definition of 'medical 

care,' and your reading of article IX, 

section 9 and article IX, section 13 of the 

Texas Constitution and the Montgomery County 

Enabling Act, is the duty of providing 

medical care for needy residents exclusively 

imposed on the Montgomery County Hospital 

District? 

It is clear that the &&y of providing indigent health care 

is placed 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 to provide indigent health care. 

Your 'sixth question is: 

If the term 'medical care,' as defined, 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 of whether 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, it was intended 

to allow political subdivisions within a hospital. district 

to provide certain services, regardless of whether they 

constitute medical care. 

YOU also note the provisions of article 4436b, 

V.T.C.S., which allow counties and municipalities 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 a public health district 

or a local health department is created, it & provide the 

following public health services: 

(1) personal health promotion and maintenance services: 

(2) infectious disease control and prevention services: 

p. 5476 
Honorable D. C. (Jim) Dozier - Page 7 (JM-1052) 

(3) environmental and consumer health 

programs for enforcement of health and safety 

laws related to food, water, water control, 

general sanitation, and vector control; 

(4) public health education and information services: 

(5) laboratory services; and 

(6) administrative services. 

a. 5 4.09. In short, once a county joins a health district 

or establishes a local health department, it has a &&Y to 

provide certain public health services. Section 4.08(a)(l) 

of article 443615 provides: 

(1) no individual shall be denied public 

health services because of inability to pay 

for services, and the municipality, county, 

or district shall make provisions for a 

reduced fee or no fee for individuals unable 

to pay for services in whole or in part. 

Your question raises the issue of whether sections 4.08(a) 

and 4.09 of article 4436b require a local health department 

or health district to provide certain types of medical care 

to an indigent who is a resident of a hospital district. 

First, because it is the responsibility of a hospital 

district to determine what medical care it must provide to 

indigents, we cannot resolve the fact question of whether 

there is an overlap in the duty placed on a hospital 

district to provide medical care for its needy inhabitants 

and the duty of a county within the boundaries of a hospital 

district that has a duty to provide public health services 

under article 4436b. Even if there is an overlap, we do not 

think that a county is prohibited from voluntarily assumin 

a responsibility that is also borne by a hospital district. 3= 

3. Hospital districts, county health departments, and 

health districts are not required to seek out indigents and 

to provide them with services. Rather, they mu& provide 

certain services when those services are sought by 

indigents. Therefore, even if there are overlapping responsibilites in the context you ask about, neither political 

subdivision is in the position of being unable to fulfill 

its duty because another political subdivision has already 

done so. 

p. 5477 
Honorable D. C. (Jim) Dozier - Page 8 (JM-1052) 

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 a hospital district for the 

provision of services that both are obligated or authorized 

to provide. 

Your seventh question is: 

Your paragraph on page 2 of JM-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 such power and 

obligation rests exclusively on the 

hospital district. 

Anticipating possible confusion caused by 

references to medical 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, it was not discussed 

in Attorney General Opinion JM-722. Taken out of context, 

the paragraph you quote is incomplete inasmuch as it does 

not mention that article IX, section 13, of the Texas 

Constitution makes exceptions to certain provisions of 

article IX, section 9. 

SUMMARY 

The determination of whether a particular 

expenditure is for medical care for purposes 

of article IX, section 9, of the Texas Constitution must be made on a case-by-case basis. 

Similarly, the determination of whether a 

service constitutes mental health or mental 

retardation services or public health services 

must be made on a case-by-case basis. 

P. 5478 
Honorable D. C. (Jim) Dozier - Page 9 (JM-1052) 

The enabling statute of a hospital district must specifically mention mental health 

and mental retardation services and public 

health units and clinics in order to prevent 

a political subdivision within a hospital 

district from exercising any authority it 

might otherwise have to provide such services. 

Article IX, section 13, of the Texas 

Constitution does not impose a duty on any 

political subdivision to provide 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 or has become a member of a 

health district and a hospital district have 

overlapping responsibilities. There is no 

legal impediment to each of two political 

subdivisions having a duty to provide the same 

services when those services are sought by 

indigents. 

Very truly yo J’ k, w 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

LOU MCCRHARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAXLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

P. 5479