November 1,1972

Hon. Joe Resweber County Attorney Harris County Courthouse Houston, Texas 77002 Opinion No.M- 1255
Re: Authority ofHarris County Hospital District to operate a chaplain program in its hospitals.
Dear Mr. Resweber:
You ask our opinion inanswer to two questions:
"1. May the Harris County Hospital District legally employ on a full timebasis qualified Hospital Chaplains to operate aChaplain program forDistrict hospitals?
"2
. May the Harris County Hospital District legally employ qualified religious persons in training positions, which lead to qualifications asHospital Chaplains?"
Our answer toyour first question is "Yes"and our answer toyour second question isa qualified "Yes".
Our anawers toyour questions must be determined within the context of two propositions. First. whether the Texas constitutional and statutory provisions pursuant towhich the hospital district was created authorized the chaplaincy programs in question. Second, whether the establishment clause of the First Amendment to the Constitution of theUnited

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States1 or Article I, Section 7 of the Texas Constitution2 prohibit these programs.
We find no court decision of any jurisdiction inpoint; nor dowe find any opinion of theAttorney General ofTexas bearing on these questions.
The Constitution of Texas, Article IX, Section 4, adopted inNwember, 1954, authorizes the legislature toprovide for the creation of county-wide hospital districts in certain counties and imposes the condition,

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. . .that such Hospital District shall assume full responsibility forproviding medical andhospital a to needy inhabitants of the county,
. . .'I (Emphasis added)
For the reasons hereinafter stated, we hold that the service of a chaplain is a long,well-established part of medical andhospital care.
The legislature had previously enacted Article 4494n, Section 1,Vernon's Civil Statutes, which became effective upon adoption of this Section 4, authorizing:

. . .the establishment of ahospital or hospital system to furnish medical aid and hospital care to the indigent and needy persons residing in said Hospital District:

. . .M

1 This clause reads as follows: "Congress shall make no lawrespecting an establishment of religion, orprohibiting the free exe,rcisethereof:
. . ." 2 This Section reads as follwss "Nomoney shall be appropriated, or drawn from theTreasury for thebenefit of any se&, or religious society, theological or religious seminary; nor shall property belonging to the State be appropriated for any such purposes." -6142-.

Hon. Joe Resweber, page 3 (M-1255)

We are squarely confronted with the question ofwhether the chaplain programs3 whit2 are the subject ofyour inquiry arewithin contemplation of the constitutional and statutory authorization to the hospital district,

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. . .to furnish medical aid and hospital care to the indigent and needy persons residing in said Hospital District:

. . ." (Emphasis added).

3 Webster's Third New International Dictionary defines chaplain as "AClergyman officially attached to the army or navy, to some public institution, or to a family or court."
The same authority defines "clergyman" as, "Amember of the clergy: an ordained minister: aman regularly authorized to preach the gospel and administer its ordinances: one inholy orders."
Thenjobdescription of the position classification of chaplain prescribed in the original Position Classification Plan adopted in 1961 has remained substantially the same to the present time. Generally, a chaplain isrequired tobe a graduate ordained minister of religion. He performs the usual ministerial duties of conducting services and providing pastoral care and counseling under the particular specialized conditions of the institution. All this isperformed forpat.ientsand .studentsin training and their familieswithin t.heframework ofhis ordination vows and the administrative and professional policies of the institution inwhich he serves. He is amember of the staff of the institution. Chaplains Classes II and 111 have supervisory duties over those of a lower class. 4This opinion considers only si,tua,tions of voluntary pa'tientsand not thosewho may be incarcerated or de-- tained by any order of the sovereign, whether under the police, public health or other power, nor persons in themilitary forces. The sovereign is constitutionally -6143-Hon. Joe Resweber, page 4 (M-1255)

The position or classification of chaplain hasbeen provided forby the general law ofTexas since 1961. Art. 6252-11, Sec. 3,V.C.S. Itwas named in the original Position Classification Plan filed with theGovernor onMay 10, 1961. When employees in the State Hospitals and Special Schools came under this Plan on September 1, 1963, two additional classes of chaplain, numbers II and IIIwere added. Since that time these three classes of chaplains (Chaplain I, II and 111, class numbers 5081, 5082 and 5083 respectively) have been included among those positions authorized by the legislature pursuant toArticle 6252-11, Sections 1, 2and 3. The general appropriation act for each year beginning September 1, 1961 through the lastAct for thebiennium ending August 31, 1973has expressly named these cla sea of chaplains andmade provisions for their salaries.Y

required to furnish chaplains topersons incarcerated under its authority. Barrett v.Rodqers, 410 F.2d 995 (Ct.ofApp., Dist. ofCol. Cir. 1969): Horn v. People ofCalifornis, 321 F.Supp. 961, (D.C.E.D.Cal. 1968, aff.without Opin., 436 F.2d 1375, cert. den. 401 U.S. 976);Military Law Review, Vol. 55 (Winter 1972). p. 1, 18-21, "Constitutional Rights of Prisoners." For persons in themilitary, chaplains have been provided by the several military departments from the earliest history of our country. The constitution probably would so require. Maryland Law Review, Vol. 24 (No.4, Fall 1964), p. 377, "Military Chaplains-A Constitutionally Permissible Accommodation Between Church and State." 51) Acts 57thLeg., 1stC.S., 1961, p. 374, 380 21 Acts 58th Leg., 1963, R.S., p. 1642, 1648 3) Acts 59thLeg., 1965, R.S., p. 1922, 1928, 1929 4) Acts 60th Leg., 1967,R.S., p. 2300, 2306 5) Acts 60th Leg., 1stC.S., 1968, p. 346, 355

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In addition to the foregoing authorizations for chaplains, the legislature in 1961 and for each year since that time, ineach of the general appropriations acts, has authorized certain compensations for 'I.
. .interns, chaplains in training, and student nurses." (Emphasis added)6
We note here that compensation isprwided for chaplains in training aswell as for interns and student nurses.
The current general appropriation Act,7 (Article II,) makes this provision applicable to the following agencies or departments of the state: Department ofHealth, Department

6) Acts 61st Leg., 2d.C.S., 1969, p. 575, 585 7) Acts 61st Leg., 2d.C.S., 1969, p. 997, 1007 8) Act8 62nd Leg., 1971, R.S., p. 3778, 3788 9) Acts 62nd Leg., 1972, 3d. C.S., p.v-17, 27, Journal Supp. 

## % 2) 3) 4) 5) 6) 7) 8) 

## 9) 10)Acts 56th Leg., 3dC.S., 1959, p. 496 Acts 57thLeg., 1stC.S., 1961, p. 243 Acts 58th Leg., 1963, R.S., p. 1436 Acts 59th Leg., 1965R.S., p. 1729 Acts 60th Leg., 1967, R.S., p. 2133-2134 Acts 60th Leg., 1stC.S., 1968, p. 68 Acts 61st Leg., 2d.C.S., 1969, p. 280 Acts 61st Leg., 2d.C.S., 1969, P. 684 Acts 62nd Leg., 1971, R.S.. p. 3484 Acts 62nd Leg., 1972, 3d. C.S., S.B. 1, p. 11-41, Journal Supp. This provision in the current Act (Acts 62nd Leg., 1972, 3d.C.S. p. II-41), which is in all respects similar to the provisions in each of these Acts, reads as follws: "As compensation for services rendered, any institution under the jurisdiction of the respective governing boards may provide

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ofMental Health andMental Retardation, Mental Hospitals and Centers, Schools forMentally Retarded, Texas Researc Institute ofMental Sciences and the Texas youth Council.B Our information from the State Classification Officer is that under authority of the general appropriation actwhich covered the fiscal year September 1, 1971, and ending Au ust 31, 1972, these state agencies employed forty chaplains.SI

freemeals for food service personnel and volunteer workers, and may furnish housing facilities, meals and laundry service inexchange for services rendered by interns, chaplains in training, and student nurses." 7 Acts 62nd Leg., 1972, 3dC.S., S.B. 1,Journal Supplement. 8 This authorization isunder the heading "SPECIAL PROVISIONS RELATING TOALL HOSPITALS, SPECIAL SCHOOLS, YOUTH INSTITUTIONS, AND AGENCIES OR OFFICES OFARTICLE II"which heading begins atpage II-33 of the current general appropriation act. Article II of the act is entitled "PUBLIC HEALTH, HOSPITALS, SPECIAL SCHOOLS AND YOUTH INSTITUTIONS" (atp. II-l). See also Table ofContents, at p. l-vii, Journal Supplement.
'These agencies and the number of chaplains employed by each onMay 31,!1972, was as follows: (1) State Health Dept., a total of 4 chaplains: San Antonio State Chest Hosp., 2:East Tex. Chest Hosp., 1;Harlingen State Chest Hosp., 1. (2) Texas Youth Council, a total of 11 chaplains: Deputy Executive Director and Supervising Chaplain plus an assis,tant,2;Waco State Home, 1;Brownwood State Sch. forGirls, 1:Gatesville State Sch. for Boys. 4;Mountain View State Sch. forBoys, 2; and Gainsville State Sch. forGirls, 1.

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We are informed that authorizations forpayment of chaplains inmany of the statemedical andmental hospitals and other eleemosynary institutions has been expressly provided for in the general appropriation acts formany years prior to 1961. We have made two spot checks at random of the general appropriation acts for these institutions for twobienniums. The first is for the period 1921-1923 (Acts 37thLeg., 1st C.S., 1921, ch. 36) and the second is for the period 1941- 1943 (Acts47th Leg., 1941, R-S., ch. 567). The first specifically lists appropriations for chaplains in eleven different institutionslO and the second makes specific appro - riation for chaplains in fifteen different institutions.1P

(3) Texas Dept. ofMental Health andMental Retardation, a total of 25 chaplains: Texas Research Insti- ,tuteforMental Sciences, 1;Austin State Hosp., 5; San Antonio State Hosp., 3;Vernon Geriatric Center, 1:Terre11 State Hosp., 2;Rusk State Hosp., 1:Wichita Falls State Hosp., 1;Big Spring State Hosp., 1:Mexia State Sch., 2:Denton State Sch., 1:Richmond State Sch., 1;Corpus Christi State Sch., 1;San Angelo Center, 1;Travis State Sch., 1;Abilene State Sch., 1:Austin State Sch., 1;and Lubbock State Sch., 1.

In addition to these forty Texas Dept. of Corrections employed eleven chaplains forwhom specific appropriationwas made by other provisions of this Act (at p. 3548) plus four others onpart-time and full,-time basis who were paid out of another fund. 10Line item appxoprititionsaremade fox one chaplain in each of the following institutions: tuberculos,ishas.- pital, p. 96; orphans home, p. 87: Confederate Home, P- '71:epileptic colony, p. 85: feeble minded colony, p. 94; juvenile training school, p. 90; and one chaplain in each of the five insane 'hospitals,p. 73, 77, 80, 82 and 102. 11 ,. Line item appropriations aremade for one chaplain in each of flf.teenstate institutions as follows: -6147-Ron. Joe Resweber, page 8 (M-1255)

The long continuous history of chaplains in the state chest hospitals (formerly tuberculosis hospitals) is set forth in the letter to us from theMedical Director in the Texas State Department of Health in charge of those hospitals from which we quote:

"I feel that thepresence of a chaplain on the staff of our State Chest Hospitals is an important item in therapy.
"The science of Pastoral Medicine is of proved value in the treatment ofpatients inhospitals, particularly long term patients such as those suffering with tuberculosis.

"In the case of the seriously illpatient and the highly distraught relative, the chaplain is essential topsychologically preserve calm and to facilitate indicated treatment to the patient. Medical science well knows that peace ofmind is amost effective adjunct tomedical management. "Chaplains have been an integral part of the staffs of our chest hospitals since the hospitals' inception. A chaplain was

tuberculosis hospital, p. 976: school for theblind, p. 970; correctional school forboys, p. 975; correctional school for girls, p. 972; and one chaplain ineach of the ,threeorphans homes, p. 964, 966, and 967; one chaplain ineach of the sixmental hospitals, pgs- 946, 949, 952, 954, 957 and 960; one chaplain at ,theAustin State School, p. 941; and one chaplain at theAbilene State Hospital, p. 944.

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a member of the staff of the oldMcKnight Hospital when itwas first founded on July 4, 1912. Since that time all of our hospi.talshave had chaplains on,their staffs who have performed and continue to perform amost important part in the treatment of our long term tuberculosis cases."
The Chief of theMedical Service of one of the large priva.tehospitals inTexas concurs in support of the chaplaincy program inmedical hospitals, He states (inpart):

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. . .I can saywithout hesitation that patient care is greatly improved if there is an active chaplain program that is integrated with the nursing and physician activities. The chaplain is frequently able to communicate farbetter with thepatient and the family than the nurse orphysician. Also, not infrequently, the chaplain spends time in communicating which the nurse and the doctor may not spend
. . . .I'
A leading surgeon in the Texas Medical Center inHouston corrobora,testhis fact observing that "There aremany social and religious aspects that pertain to illnesswhich arebest handled by persons in the chaplaincy service

. . . .'I
The uncontroverted facts presented tous are that chaplains had been employed in anumber of the state medical hospitals formany years prior to the adoption ofArticle IX, Section 4 to the Texas Constitution in 1954 and enactment of the enabling legislation (Art.4494n. Sec. 1) in the same year, and that the legislature hadmade specific appropriations for their services. This long continued legislative construction and practice and universal construction and acquiescence by all state officers and thepublic should not andwill not 'bedeclared illegal by theAttorney General, in the absence of a controlling decision of our cousts, unless it is clearly unlawful. 53Tex.Jur.2d 257-267, Statutes,

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Sec. 176-178; Hurt v. Cooper, 130Tex. 433, 110 S.W.2d 896 (1937);Central Power & Light CO. v. State, 165 S.W.2.d920, 924-925 (Tex.Civ.App. 1942, error ref.). This long continued construction was specifically authorized by enactment of the general substantive law, the Position Classification Act of 1961 (Art. 6252-11). This Act specifically provides for the position of chaplain as a state employee, Every general appropriation act since has made appropriation for this class of employee in the state's medical hospitals-l2

We interpret this long uninterrupted legislative history to evince the legislative intent and declaration that the service of chaplains isby it considered as anecessary service incident to treatment ofmedical patients in state hospitals. The professional usage of chaplains by themedicalprofession in the treatment ofmedical patients in these hospitals is alsowithout controversy before us. This established intent and recognized practice existed longbefore the adoption in 1954 ofboth the constitutional and statutory provisions under which your hospital district operates andmust be considered in interpreting these laws. This principle of construction hasbeen stated as follows:

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. . .the courts have declared that a statute will be construed in the light of contemporaneous history, and that the circumstances ofbusiness usage, and the life andhabits of the people at the time of the passage of the act will be considered. Judicial notice

12 Art. 681313,V.C.S., and the several general appropriations acts. See Footnotes 6 and 7, supra. The appropriation acts usually authorize chaplains under ageneral heading such as "Salaries of Classified Positions". For example, see the appropriation to the East Texas Chest Hospital, being Item’6 atp. II-6 of the current general appropriation act (Acts 62nd Leg,, 3dC-S., 1972, S-B. 1,Journal Supplement).

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will be taken of conditions of common notoriety existing at the time of the passage of an act. And conditions and facts then existing andwithin the knowledge of the legislature, and the history of the subject matter involved, are properly considered in ascertaining themeaning and object or the scope and effect of an act." 53Tex.Jur.2d 251-252, Statutes, Sec. 172.
The law seems tobe settled to the effect that a county hospital district, such asHarris County Hospital District, created and operating under Article IX, Section 4 of our State constitution andArticle 4494n, Section 1, is apublicbody which expends public funds for a governmental function. Ritch v. Tarrant Countv Hospital District 476 S.W.2d 950 (Tex.Civ.App. 1972, aff. 480 S.W.Zd 622, Tex. Sup. 1972): Rodrisuez v.Medical Arts Hospital, 437 F.2d 1204 (5thCir. 1971):Arseneau v. Tarrant County Hospital District, 408 S.W.2d 802 (Tex.Civ.App. 1966, error ref. n.r.e.). The status ofHarris County Hospital District with reference to expenditure of itspublic monies for the chaplain programs inquestion appears tobe wholly analagous to the legal status of the State inexpenditure of state monies for its chaplain programs.
We hold tha,tthe constitutional and statutory provisions under which the Harris County Hospital District was created and operates authorize the employment by theDistrict of chaplains and payment of their salaries from the public funds of theDistrict.

We consider nowwhether the establishment clause of the First Amendment to the Constitution of the United tates13 orArticle.1, Section 7 of the Texas Constitutioniiiare a

13See Footnote 1, supra 14See Footnote 2, supra

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bar to the chaplain programs under consideration, This is the field of church-state relations, No case of any court or other legal aut,horityhas been found or called to our attention which is controlling on this question.
At the outset of this consideration we note that chaplains have been an integral class of federal employee of the National Home forDisabled Volunteer soldiers (now an agency of theVeterans Administration) since the year 1866 and of the Veterans Administration medical and other hospitals since their inception, All doubts concerning the constitutionality of acts of theLegislature, and of the executive and administrative interpretations given those acts, must be resolved, ifpossible, in favor of their validity, 53Tex.Jur.2d 227, Statutes, Sec. 158.
The chaplain programs under consideration appear to have a secular legislative purpose: their principal or primary effect appears to neither advocate nor inhibit religion and they do not appear to foster "anexcessive governmental entanglement" with religion, Lemon v. Kurtzman, 403U.S. 602, 612-613 (1971) and Tilton v. Richardson! 403 U.S. 672 (1971). The chaplaincy programs of the State appear tobe within the scope of the accanmcdationallowed under the establishment clause by McGowan v.Marvland, 366U.S. 420 (1961);Maryland Law Review, Vol. 24 (No.4, Fall 19641, page 377, "Military Chaplains -A Constitutionally Permissible Accommodation Between Church and State.* We hold that these enactments of the Legislature and acts of the several state agencies and institutions named in the several general appropriation acts considered in this opinion in employing chaplains andmaintaining a chaplain training program are valid under the First Amendment to the United States Constitution.
We also are of the opinion that these enactments and acts arevalid u,nderArticle I, Section 7 of the Texas Constitution which reads:

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"NOmoney shallbe appropriated, or drawn from the Treasury for thebenefit of any sect, or religious society, theological or religious seminary: nor shall property belonging to the State be appropriated for any such purposes."
The only relevant casewhich we findwhich construes this Section isChurch v. Bullock, 104Tex. 1, 109 S-W. 115 (1908). The court held that voluntary religious type exercises in the public schools did notviolate this Sectjon. Our opinion is that the services of a chaplain and the type ,ofchaplain training program approved by the Legislature isdirected toward aid of individuals who desire this type of aid and isnot ".
. .for the benefit of any sect, or religious society, theological or religious seminary:

. . . .'I
Your second question askswhether Harris County Eospita1 District may legally employ qualified religious persons in training positions which lead to qualifications ashospital chaplains. We are not advised of the nature of the training program proposed. However, if it is legally similar to the training program for chaplains which has been carried out in the state institutions and which apparently has been approved by the Legislature, then your program alsowould be within the legislative intent for providing fullmedical aid andhospital care to the indigent and needy persons residing inyour hospital district. We will assume that the training program will be administered in conformity to the constitutional guidelines hereinabove discussed and that the program does not contemplate training inreligion but rather training inhospital administration andministering to the i,ndividualneeds of the patients asmay be requested.

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### SUKK&RX -a The Harris County Hospital District may employ chaplains in itshospitals, since the service of a chaplain is a long,wellestablished part ofmedical andhospital care.
very truly,

Prepared by W. E.Allen Assistant Attorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman Houghton Brownlee Ben Harrison Arthur Sandlin Wayne Rodgers
SAMUEL D.MCDANIEL Staff Legal Assistant

ALFRBDWALEER Executive Assistant General of Texas

NOLAWEITB First Assistant

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