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.

Wear$ 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, maycooperate, 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 thisAct, a 'communitycenter'

my "3) a communitymental health center,which provides mental health services;or

(2) a communitymental retardation center, which provides mental retardation services;or 

### (3) a communitymental health and mental retardation center,which provides mental health and mental retardation services."
and Section 

### 3.14provides as follows:

"Sec. 

### 3.14. A community centermay provide services free of charge to indigentpersons. It may charge reasonable fees, to cover costs, for servicesprovided to other persons. With respect to the collection of fees for the treatment of nonindigentpersons, it has the same rights,privileges, and powers granted to the Texas Department of Mental Health and &ntal Retardation." (Emphasisadded).
It thus appears that the community centers which would be established underArticle 

### 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 constitutionalprovision. that would inhibit the establishmentof such community centers for mental health and mental retardation services.

Your next question concerns the allocation of financialgrants-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 regulationsprescribedby theAct and If such allocations would be permissible under the Constitutionof 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, 1966and $750,000plus unexpendedbalances for the year ending August 

### 31, 1967out of which grants-in-aid to community centers may be made.

Article 4.of House Bill 

### 3,Acts 59th Legislature, Regular Session, 1965,providesas 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 theparticipating 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 effectivemental health or mental retardation services, orboth.
"Sec. 4.02. A community center is eligib to receive state grants-in-aid if: (1) thepopulation within the region served is 100,000or more according to the lastpreceding federal census; and (2) It qualifies according to the rules of theDepartment. le

"Sec. 4.03. (a) The Department shall make rules, consistentwith the purposes, policies,principles, and standardsprovided by thisAct, establishing theminimum standards relating to the amount, quality, kinds,and accessibilityof serviceswhich 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 centerwith a soundplan for the development of the full range of servicesmay qualify for grants-in-aidalthough It does not presently qualify under Subsection (a)of this section. (c) The Department shall hold hearings on all proposed rules under this section. Communitycenters 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 shallallocate to the eligible community centers themoney appropriated to the Department for thatpurpose. "Sec.4.05. In determining thepercentage 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) thepopulation of the region served by the center; (2) the soclo-culturaland economic characteristicsof the region; 

### (3) the rate of mental dlsorders and disabilities in the region as revealed by reliable statistics; (4) the ability or poten‘tlalability of the center to provide comprehensive services for all residents of the region; and 

### (5) the quality of the center's services and the effectivenessof the services in terms of average cost per patient-stay and other- relevant indices,or the potential quality and effectivenessof the services.
"Sec. 2. Hospital Board Abolished. The Board for Texas State Hospitals and Special Schools is abolished. This does not preclude the Governor fromappointing one or more members of thatboard to the Texas Board of Rental Health and Rental Retardation. ,1

. . . "Sec. 

### 4. EffectiveDate. 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 operationof such community centers.

As your secondquestion concerns whether the allocation of financial grants-in-aidto 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 theAct would be permissible under the Constitution of the State of Texas, the only section of the Constitutionwhich we deem necessary to discuss In this opinion, as towhether such allocations would violate the Constitution, wouldbe Section 

### 51 of Article III, Constitutionof Texas, wherein itprovides: -2820-Dr. S. H. Prazier; page 5 (C-584)

"The Legislature shallhave no power to make any grant or authorize themaking of any grant of public moneys to any individual, association of individuals,municipal or other corporationswhatsoever;

. . .'
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.nparta 11

. . . the uurpose of this section

. . . of the Constitution-isto prevent the application of public funds to private purposes;
. . . See Byrd v. City of Dallas, lltl Tex. 28, 6 S.W.2d 738.” (Emphasisadded).
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 favorof constitutionality,and a constructionwill be given, if reasonable, that-will uphold it. Southern Pine Lumber Companyv. Newton CountyWater Supply District, 325 S W 2d 724

. . (T

ex.Civ.App. 1959, err. ref., n.r.e.).
It thus appears thatyour inquiry resolves irself into a question of whether the allocation of financial grantsin-aid to community centers establishedunder House Bill 3, Acts of the 59th Legislature,Regular Session, 1965, iswithin the meaning of applying “public funds to a privatepurpose.” We think that it is not.

In Attorney General’s Opinionv-1067 (1950), this office said in part:

“In determiningwhether an expenditureof publicmonies constitutesa gift or a grant of public monies, the primary question is whether the funds are used for a ‘public1or ‘private’purpose. The benefit of the State from an expenditure for a ‘publicpurpose’ is in the nature of consideration and the funds expended are thereforenot a gift even thoughprivate persons arebenefited therefrom.” The determinationof what constitutesa "public purpose” for which a Statemay expendpublic monies has been held to be primarily a legislativefunction, subject to review by the courts when abused, and the determinationof the legislativebody of that matter has been held tobe not subject to -2821-Dr. S. H. Frazier,page 6 (C-584)

be reversed except in Instanceswhere 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 shallbe the duty of the Legislature to provide for the custody and maintenance of Indigent lunatics, at the expense of the State, under such regulationsand restrictions as the Legislaturemay prescribe." Maintenanceby the State of hospitals and asylums for the care and treatmentof the insane,being specificallyprovided for In the Constitution, Is theperformance of a overnmental duty. (Emphasisadded). Welch v. State, 148 S.W.2d 876B(Tex.Clv.App.. 1941, error ref.).

That themaintenance and treatment of indigent, infirm and mentally defectivepersons Is a strictlygovernmental 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, 12Atl.2d 333, Pa. Sup. 1940,p. 335.

It Isnoted In reading Section 3.14, supra, that a community centermay 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 serviceswould not be given to individuals thatwere 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 violationof Section 51, Article III, Constitution of the State of Texas. Our attention has not been directed to any provision of the Constitutionprohibiting 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 communityhealth 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 financialgrants-in-aid to communitycenters established under House Bill 3, Acts of the 59th Legislature,Regular Session, 1965, and under the conditions, rules and regulations prescribedby 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 Ivanw111isms N. Grady Chandler J. Arthur Sandlln
APPROVEDMIR THEATTORNRY GRNBRAL BY: T. B. Wright

-2823-