AFroYSRx ~~SsaaAI. 

January 17, 1966 

Dr. S. II. Frazier 

Commissioner of Mental Health 

and Mental Retardation 

Box S;Capitol Station 

Austin, Texas 78711 

Opinion Ho. C-584 

Re: Whether.the establishment of 

community mental health centers 

pursuant to the provlaitins of 

Ii. B. Ho. 

2, 

Acts 59th Legislature, 19 5, is permissible 

under the Texas Constitution 

Dear Dr. Frazier: and related question. 

We ar$ in receipt of your letter of recent date 

requesting an opinion on the questions hereinafter stated: 

1. Would establishment of commkity mental 

health centers pursuant to the provisions of 

Article 3 Of House Bill 3, Acts 59th Legislature, 

Regular Session, 1965, be permiesible under the 

Constitution of the State of Texas? 

2. Would the allocation of financial grantsin-aid to community centers established under 

Article 4 of House Bill 3, Acts 59th Legislature, 

Regular Seseion, 1965, under the conditions and 

rules and regulations prescribed by the Act be 

permissible under the Constitution of the State 

of Texas? 

Article 3 of Houee Bill 3, Acts of the 59th Legislature, 

Regular Session, 1965, Chapter 67, page 165, provides in Section 

3.01 thereof the following: 

“Sec. 3.01 (a) One or more cities, counties, 

hospital districts, school districts, rehabilitation 

districts, state-supported institutions of higher 

education, and state-supported medical schools, or 

any combination of these, may cooperate, negotiate, 

-2817- 
Dr. S. H. Frazier, page 2 (C-584) 

and contract with each other through their governing 

bodies to establish and operate a community center. 

(b) As used in this Act, a 'community center' 

my "3) a community mental health center, which 

provides mental health services; or 

(2) a community mental retardation center, 

which provides mental retardation services; or 

(3) a community mental health and mental 

retardation center, which provides mental health 

and mental retardation services." 

and Section 3.14 provides as follows: 

"Sec. 3.14. A community center may provide 

services free of charge to indigent persons. It 

may charge reasonable fees, to cover costs, for 

services provided to other persons. With respect 

to the collection of fees for the treatment of nonindigent persons, it has the same rights, privileges, 

and powers granted to the Texas Department of Mental 

Health and &ntal Retardation." (Emphasis added). 

It thus appears that the community centers which 

would be established under Article 3 of House Bill 3, Acts of 

the 59th Legislature, Regular Session, 1965, become an agency 

of the State of Texas and we can find no constitutional provision. that would inhibit the establishment of such community 

centers for mental health and mental retardation services. 

Your next question concerns the allocation of 

financial grants-in-aid to community centers established 

under Article 4 of House Bill 3, Acts 59th Legislature, 

Regular Session, 1965, under the condition and rules and 

regulations prescribed by the Act and If such allocations 

would be permissible under the Constitution of the, State of 

Texas. 

Section 1 of Article II, House Bill 12, Acts 59th 

Legislature, Regular Session, 1965, Chapter 720, Appropriations, 

appropriates at page 1705 to the Texas Department of Mental 

Health and Mental Retardation $600,000 for the year ending 

August 31, 1966 and $750,000 plus unexpended balances for the 

year ending August 31, 1967 out of which grants-in-aid to 

community centers may be made. 

Article 4.of House Bill 3, Acts 59th Legislature, 

Regular Session, 1965, provides as follows: 

-2818- 
Dr. S. H. Frazier, page 3 (C-584) 

“Sec. 4.01. As soon as possible after its 

establishment, a community center shall formulate 

and submit to the Department: 

(1) a copy of the written agreement 

between the participating local agencies; 

(2) a plan, within its projected 

financial, physical, and personnel resources, 

to develop and make available to the resTdents 

of the region a full range of effective mental 

health or mental retardation services, or both. 

"Sec. 4.02. A community center is eligib 

to receive state grants-in-aid if: 

(1) the population within the region 

served is 100,000 or more according to the 

last preceding federal census; and 

(2) It qualifies according to the rules 

of the Department. 

le 

"Sec. 4.03. (a) The Department shall 

make rules, consistent with the purposes, 

policies, principles, and standards provided 

by this Act, establishing the minimum standards 

relating to the amount, quality, kinds, and 

accessibility of services which must be provided by a community center in order to 

qualify it for state grants-in-aid. 

(b) The Department shall make rules 

under which a newly established community 

center with a sound plan for the development 

of the full range of services may qualify 

for grants-in-aid although It does not 

presently qualify under Subsection (a) of 

this section. 

(c) The Department shall hold hearings 

on all proposed rules under this section. 

Community centers and local agencies shall 

be given notice and an opportunity to testify. 

Delivery or publication of notice may be 

given in any form which is reasonably calculated 

to give actual notice: 

"Sec. 4.04. The Department shall allocate 

to the eligible community centers the money 

appropriated to the Department for that purpose. 

"Sec. 4.05. In determining the percentage 

of the total amount available to be allocated 

-2819- 
Dr. S. H. Frazier, page 4 (C-584) 

to each eligible community center, the Department shall give due consideration to the 

following factors: 

(1) the population of the region served 

by the center; 

(2) the soclo-cultural and economic 

characteristics of the region; 

(3) the rate of mental dlsorders and 

disabilities in the region as revealed by 

reliable statistics; 

(4) the ability or poten‘tlal ability 

of the center to provide comprehensive 

services for all residents of the region; and 

(5) the quality of the center's services 

and the effectiveness of the services in 

terms of average cost per patient-stay and 

other- relevant indices, or the potential 

quality and effectiveness of the services. 

"Sec. 2. Hospital Board Abolished. The 

Board for Texas State Hospitals and Special 

Schools is abolished. This does not preclude 

the Governor from appointing one or more 

members of that board to the Texas Board of 

Rental Health and Rental Retardation. 

,1 . . . 

"Sec. 4. Effective Date. This Act 

takes effect on September 1, 1965. 

II M . . . 

It will be noted from a careful reading of Article 4 of House 

Bill 3, supra, that the Department of Rental Health and Mental 

Retardation controls the supervision and operation of such 

community centers. 

As your second question concerns whether the allocation 

of financial grants-in-aid to community centers established urder 

Article 4 of House Bill 3, Acts of the 59th Legislature, Regular 

Session, 1965, under the conditions and rules and regulations 

prescribed by the Act would be permissible under the Constitution 

of the State of Texas, the only section of the Constitution which 

we deem necessary to discuss In this opinion, as to whether such 

allocations would violate the Constitution, would be Section 51 

of Article III, Constitution of Texas, wherein it provides: 

-2820- 
Dr. S. H. Prazier; page 5 (C-584) 

"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; . . .' 

In speaking of Section 51 of Article III of the 

Constitution of Texas, the Supreme Court, in the case of 

State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960), said 

3.n parta 

11 . . . the uurpose of this section . . . 

of the Constitution-is to prevent the application 

of public funds to private purposes; . . . See 

Byrd v. City of Dallas, lltl Tex. 28, 6 S.W.2d 738.” 

(Emphasis added). 

It is well settled in this state that when a law 

duly enacted is attacked as unconstitutional it is presumed 

to be valid and doubts as to its unconstitutionality should 

alwavs be resolved in favor of constitutionality, and a 

construction will be given, if reasonable, that-will uphold it. 

Southern Pine Lumber Company v. Newton County Water Supply 

District, 325 S . W . 2d 724 (T ex.Civ.App. 1959, err. ref., n.r.e.). 

It thus appears that your inquiry resolves irself 

into a question of whether the allocation of financial grantsin-aid to community centers established under House Bill 3, 

Acts of the 59th Legislature, Regular Session, 1965, is within 

the meaning of applying “public funds to a private purpose.” 

We think that it is not. 

In Attorney General’s Opinion v-1067 (1950), this 

office said in part: 

“In determining whether an expenditure of public monies constitutes a gift or a grant of public 

monies, the primary question is whether the funds 

are used for a ‘public1 or ‘private’ purpose. The 

benefit of the State from an expenditure for a 

‘public purpose’ is in the nature of consideration 

and the funds expended are therefore not a gift 

even though private persons are benefited therefrom.” 

The determination of what constitutes a "public 

purpose” for which a State may expend public monies has been 

held to be primarily a legislative function, subject to review 

by the courts when abused, and the determination of the legislative body of that matter has been held to be not subject to 

-2821- 
Dr. S. H. Frazier, page 6 (C-584) 

be reversed except in Instances where such determination Is 

palpable and manifestly arbitrary and Incorrect. State ex rel. 

McClure v. Ha~erman, 155 Ohio St. 320, 98 N.E.2d 835 (1951). 

It appears from a reading of House Bill No. 3 that 

the same was set up primarily for the purposes of carrying out 

the provisions of Section 54 of Article XVI of the Constitution 

of Texas, which 1s set out as follows: 

"It shall be the duty of the Legislature 

to provide for the custody and maintenance 

of Indigent lunatics, at the expense of the 

State, under such regulations and restrictions 

as the Legislature may prescribe." 

Maintenance by the State of hospitals and asylums for 

the care and treatment of the insane, being specifically provided 

for In the Constitution, Is the performance of a overnmental duty. 

(Emphasis added). Welch v. State, 148 S.W.2d 876B(Tex.Clv.App.. 

1941, error ref.). 

That the maintenance and treatment of indigent, infirm 

and mentally defective persons Is a strictly governmental function 

cannot be questioned. Commonwealth v. Liveright, 308 Pa. 35, 

1.61 Atl. 697; Poor District Case, No. 1, 329 Pa. Sup. 390, 197 

Atl. 334; Poor District Case, No. 2, 329 Pa. 410, 196 ~tl. 837. 

In Re Erny's Estate, 12 Atl.2d 333, Pa. Sup. 1940, p. 335. 

It Is noted In reading Section 3.14, supra, that a 

community center may provide services free of charge to indigent 

persons and that It would charge reasonable fees to cover costs 

for services to other persons. 

It therefore appears that services would not be given 

to individuals that were able to pay for treatment. 

Therefore, you are advised that Section 4 of House 

Bill 3, Acts 59th Legislature, Regular Session, 1965, is not 

in violation of Section 51, Article III, Constitution of the 

State of Texas. Our attention has not been directed to any 

provision of the Constitution prohibiting the carrying out of 

a program as provided for in House Bill 3, supra, and therefore 

you are advised that Sections 3 and 4 of said House Bill 3, 

supra, are constitutional. 

-2822- 
Dr. S. H. Frazier, page 7 (C-584) 

SUMMARY 

1. Establishment of community health centers 

pursuant to the provisions of Article 3 of House 

bill 3, Acts of ihe 59th Legislature, Regular 

Session, 1965, is permissible under the Constitution 

of the State of Texas. 

2. Allocation of financial grants-in-aid to 

community centers established under House Bill 3, 

Acts of the 59th Legislature, Regular Session, 

1965, and under the conditions, rules and regulations 

prescribed by the Act would not violate Section 51 

of Article III of the State Constitution. 

Yours very truly, 

WAGGONER CARR 

Att 

By: 

Assistant 

JHB:sj 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Ivan w111isms 

N. Grady Chandler 

J. Arthur Sandlln 

APPROVEDMIR THEATTORNRY GRNBRAL 

BY: T. B. Wright 

-2823-