November 1, 1972 

Hon. Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Opinion No. M- 1255 

Re: Authority of Harris 

County Hospital District 

to operate a chaplain 

program in its hospitals. 

Dear Mr. Resweber: 

You ask our opinion in answer to two questions: 

"1. May the Harris County Hospital District 

legally employ on a full time basis qualified 

Hospital Chaplains to operate a Chaplain program for District hospitals? 

"2 . May the Harris County Hospital District 

legally employ qualified religious persons in 

training positions, which lead to qualifications as Hospital Chaplains?" 

Our answer to your first question is "Yes" and our answer to your second question is a qualified "Yes". 

Our anawers to your questions must be determined within the context of two propositions. First. whether the Texas 

constitutional and statutory provisions pursuant to which the 

hospital district was created authorized the chaplaincy programs in question. Second, whether the establishment clause 

of the First Amendment to the Constitution of the United 

-6141- 
Hon. Joe Resweber, page 2 (M-1255) 

States1 or Article I, Section 7 of the Texas Constitution 2 

prohibit these programs. 

We find no court decision of any jurisdiction in point; 

nor do we find any opinion of the Attorney General of Texas 

bearing on these questions. 

The Constitution of Texas, Article IX, Section 4, adopted 

in Nwember, 1954, authorizes the legislature to provide for 

the creation of county-wide hospital districts in certain 

counties and imposes the condition, 

II . . . that such Hospital District shall 

assume full responsibility for providing 

medical and hospital 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 and hospital 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 a hospital 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 

law respecting an establishment of religion, or prohibiting the free exe,rcise thereof: . . ." 

2 

This Section reads as follwss "No money shall be appropriated, or drawn from the Treasury for the benefit 

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 of whether 

the chaplain programs3 whit 

2 

are the subject of your inquiry 

are within contemplation of the constitutional and statutory 

authorization to the hospital district, 

II . . . 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 "A Clergyman officially attached to the 

army or navy, to some public institution, or to a 

family or court." 

The same authority defines "clergyman" as, "A member 

of the clergy: an ordained minister: a man regularly 

authorized to preach the gospel and administer its 

ordinances: one in holy orders." 

Then job description 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 is required to be 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 is performed 

for pat.ients and .students in training and their families within t.he framework of his ordination vows and 

the administrative and professional policies of the 

institution in which he serves. He is a member of the 

staff of the institution. Chaplains Classes II and 111 

have supervisory duties over those of a lower class. 

4 This opinion considers only si,tua,tions of voluntary 

pa'tients and not those who may be incarcerated or de-- 

tained by any order of the sovereign, whether under 

the police, public health or other power, nor persons 

in the military forces. The sovereign is constitutionally 

-6143- 
Hon. Joe Resweber, page 4 (M-1255) 

The position or classification of chaplain has been provided for by the general law of Texas since 1961. Art. 

6252-11, Sec. 3, V.C.S. It was named in the original Position Classification Plan filed with the Governor on May 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 III were 

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 to Article 6252-11, Sections 1, 2 and 3. The general appropriation act for each 

year beginning September 1, 1961 through the last Act for 

the biennium ending August 31, 1973 has expressly named 

these cla sea of chaplains and made provisions for their 

salaries. Y 

required to furnish chaplains to persons incarcerated 

under its authority. Barrett v. Rodqers, 410 F.2d 

995 (Ct. of App., Dist. of Col. Cir. 1969): Horn v. 

People of Californis, 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 the military, 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." 

5 

1) Acts 57th Leg., 1st C.S., 1961, p. 374, 380 

21 Acts 58th Leg., 1963, R.S., p. 1642, 1648 

3) Acts 59th Leg., 1965, R.S., p. 1922, 1928, 1929 

4) Acts 60th Leg., 1967, R.S., p. 2300, 2306 

5) Acts 60th Leg., 1st C.S., 1968, p. 346, 355 

-6144- 
Hon. Joe Resweber. page 5 (M-1255) 

In addition to the foregoing authorizations for chaplains, the legislature in 1961 and for each year since that 

time, in each 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 is prwided for chaplains 

in training as well 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 of Health, 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., 3d C.S., 1959, p. 496 

Acts 57th Leg., 1st C.S., 1961, p. 243 

Acts 58th Leg., 1963, R.S., p. 1436 

Acts 59th Leg., 1965 R.S., p. 1729 

Acts 60th Leg., 1967, R.S., p. 2133-2134 

Acts 60th Leg., 1st C.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 

-6145- 
Hon. Joe Resweber, page 6 (M-1255) 

of Mental Health and Mental Retardation, Mental Hospitals 

and Centers, Schools for Mentally Retarded, Texas Researc 

Institute of Mental Sciences and the Texas youth Council. B 

Our information from the State Classification Officer is 

that under authority of the general appropriation act which 

covered the fiscal year September 1, 1971, and ending Au ust 

31, 1972, these state agencies employed forty chaplains. SI 

free meals for food service personnel and volunteer 

workers, and may furnish housing facilities, meals 

and laundry service in exchange for services rendered 

by interns, chaplains in training, and student nurses." 

7 Acts 62nd Leg., 1972, 3d C.S., S.B. 1, Journal Supplement. 

8 This authorization is under the heading "SPECIAL PROVISIONS RELATING TO ALL HOSPITALS, SPECIAL SCHOOLS, 

YOUTH INSTITUTIONS, AND AGENCIES OR OFFICES OF ARTICLE 

II" which heading begins at page II-33 of the current 

general appropriation act. Article II of the act is 

entitled "PUBLIC HEALTH, HOSPITALS, SPECIAL SCHOOLS 

AND YOUTH INSTITUTIONS" (at p. II-l). See also Table 

of Contents, at p. l-vii, Journal Supplement. 

'These agencies and the number of chaplains employed 

by each on May 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. for Girls, 1: Gatesville State Sch. for 

Boys. 4; Mountain View State Sch. for Boys, 2; and 

Gainsville State Sch. for Girls, 1. 

-6146- 
Hon. Joe Resweber, page 7 (M-1255) 

We are informed that authorizations for payment of chaplains in many of the state medical and mental hospitals and 

other eleemosynary institutions has been expressly provided 

for in the general appropriation acts for many years prior to 

1961. We have made two spot checks at random of the general 

appropriation acts for these institutions for two bienniums. 

The first is for the period 1921-1923 (Acts 37th Leg., 1st 

C.S., 1921, ch. 36) and the second is for the period 1941- 

1943 (Acts 47th 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. of Mental Health and Mental Retardation, a total of 25 chaplains: Texas Research Insti- 

,tute for Mental 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 for whom specific appropriation was made by other provisions of this Act (at 

p. 3548) plus four others on part-time and full,-time 

basis who were paid out of another fund. 

10 Line item appxoprititions are made fox one chaplain in 

each of the following institutions: tuberculos,is has.- 

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 are made for one chaplain in 

each of flf.teen state 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 the Medical Director in the Texas 

State Department of Health in charge of those hospitals from 

which we quote: 

"I feel that the presence 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 of patients 

in hospitals, particularly long term 

patients such as those suffering with 

tuberculosis. 

"In the case of the seriously ill patient 

and the highly distraught relative, the 

chaplain is essential to psychologically 

preserve calm and to facilitate indicated 

treatment to the patient. Medical science 

well knows that peace of mind is a most 

effective adjunct to medical 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 the blind, 

p. 970; correctional school for boys, p. 975; correctional school for girls, p. 972; and one chaplain 

in each of the ,three orphans homes, p. 964, 966, and 

967; one chaplain in each of the six mental hospitals, 

pgs- 946, 949, 952, 954, 957 and 960; one chaplain at 

,the Austin State School, p. 941; and one chaplain at 

the Abilene State Hospital, p. 944. 

-6148- 
Hon. Joe Resweber, page 9 (M-1255) 

a member of the staff of the old McKnight 

Hospital when it was first founded on 

July 4, 1912. Since that time all of our 

hospi.tals have had chaplains on, their 

staffs who have performed and continue to 

perform a most important part in the treatment of our long term tuberculosis cases." 

The Chief of the Medical Service of one of the large 

priva.te hospitals in Texas concurs in support of the chaplaincy program in medical hospitals, He states (in part): 

II . . . I can say without 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 far better with the patient 

and the family than the nurse or physician. 

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 in Houston 

corrobora,tes this fact observing that "There are many social 

and religious aspects that pertain to illness which are best 

handled by persons in the chaplaincy service . . . .'I 

The uncontroverted facts presented to us are that chaplains had been employed in a number of the state medical 

hospitals for many years prior to the adoption of Article 

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 had made specific appropriations for their services. This long continued legislative 

construction and practice and universal construction and acquiescence by all state officers and the public should not 

and will not 'be declared illegal by the Attorney General, in 

the absence of a controlling decision of our cousts, unless 

it is clearly unlawful. 53 Tex.Jur.2d 257-267, Statutes, 

-61149- 
Hon. Joe Resweber, page 10 (M-1255) 

Sec. 176-178; Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 

(1937); Central Power & Light CO. v. State, 165 S.W.2.d 920, 

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 is by it considered as a necessary 

service incident to treatment of medical patients in state 

hospitals. The professional usage of chaplains by the medical profession in the treatment of medical patients in these 

hospitals is also without controversy before us. This established intent and recognized practice existed long before the adoption in 1954 of both the constitutional and 

statutory provisions under which your hospital district 

operates and must be considered in interpreting these laws. 

This principle of construction has been stated as follows: 

II . . . the courts have declared that a 

statute will be construed in the light 

of contemporaneous history, and that 

the circumstances of business usage, 

and the life and habits 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 a general heading 

such as "Salaries of Classified Positions". For example, 

see the appropriation to the East Texas Chest Hospital, 

being Item’6 at p. II-6 of the current general appropriation 

act (Acts 62nd Leg,, 3d C-S., 1972, S-B. 1, Journal 

Supplement). 

-6150- 
Hon. Joe Resweber, page 11 (M-1255) 

will be taken of conditions of common 

notoriety existing at the time of the 

passage of an act. And conditions and 

facts then existing and within the 

knowledge of the legislature, and the 

history of the subject matter involved, 

are properly considered in ascertaining the meaning and object or the scope 

and effect of an act." 53 Tex.Jur.2d 

251-252, Statutes, Sec. 172. 

The law seems to be settled to the effect that a county 

hospital district, such as Harris County Hospital District, 

created and operating under Article IX, Section 4 of our 

State constitution and Article 4494n, Section 1, is a public body 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 (5th Cir. 1971): Arseneau v. Tarrant County Hospital 

District, 408 S.W.2d 802 (Tex.Civ.App. 1966, error ref. 

n.r.e.). The status of Harris County Hospital District 

with reference to expenditure of its public monies for the 

chaplain programs in question appears to be wholly analagous to the legal status of the State in expenditure of 

state monies for its chaplain programs. 

We hold tha,t the constitutional and statutory provisions 

under which the Harris County Hospital District was created 

and operates authorize the employment by the District of 

chaplains and payment of their salaries from the public 

funds of the District. 

We consider now whether the establishment clause of the 

First Amendment to the Constitution of the United tates13 

or Article.1, Section 7 of the Texas Constitution iii 

are a 

13 See Footnote 1, supra 

14See Footnote 2, supra 

-6151- 
Hon. Joe Resweber, page 12 (M-1255) 

bar to the chaplain programs under consideration, This is 

the field of church-state relations, No case of any court 

or other legal aut,hority has 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 for Disabled Volunteer soldiers (now 

an agency of the Veterans 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 the Legislature, and of 

the executive and administrative interpretations given 

those acts, must be resolved, if possible, in favor of 

their validity, 53 Tex.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 "an excessive 

governmental entanglement" with religion, Lemon v. 

Kurtzman, 403 U.S. 602, 612-613 (1971) and Tilton v. 

Richardson! 403 U.S. 672 (1971). The chaplaincy programs of the State appear to be within the scope of the 

accanmcdation allowed under the establishment clause by 

McGowan v. Marvland, 366 U.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 and maintaining 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 are valid u,nder Article I, Section 7 of the Texas 

Constitution which reads: 

-6152- 
Hon. Joe Resweber, page 13 (M-1,255) 

"NO money shall be appropriated, or drawn 

from the Treasury for the benefit 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 case which we find which construes this 

Section is Church v. Bullock, 104 Tex. 1, 109 S-W. 115 

(1908). The court held that voluntary religious type 

exercises in the public schools did not violate this 

Sectjon. Our opinion is that the services of a chaplain 

and the type ,of chaplain training program approved by 

the Legislature is directed toward aid of individuals 

who desire this type of aid and is not ". . . for the 

benefit of any sect, or religious society, theological 

or religious seminary: . . . .'I 

Your second question asks whether Harris County Eospita1 District may legally employ qualified religious 

persons in training positions which lead to qualifications 

as hospital 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 also would be within the legislative 

intent for providing full medical aid and hospital care 

to the indigent and needy persons residing in your 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 in religion but 

rather training in hospital administration and ministering to the i,ndividual needs of the patients as may be 

requested. 

-6153- 
Hon. Joe Resweber, page 14 (M-1255) 

-a SUKK&RX 

The Harris County Hospital District may 

employ chaplains in its hospitals, since 

the service of a chaplain is a long, wellestablished part of medical and hospital 

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 

-6154-