r THE .~.TTOIRNEV GENERAL 

OFTEXAS 

AUSTIN,TEXAR 78711 

The Honorable Kenneth D. Gaver Opinion No. H-865 

Commissioner 

Texas Department of Mental Health Re: Authority of Departand Mental Retardation ment of MH/MR to operate 

P. 0. Box 12668, Capitol Station residential programs for 

Austin, Texas 78711 the mentallv retarded in 

San Antonio; and related 

questions. 

Dear Dr. Gaver: 

You have asked 

of the Austin State . . 

several questions regarding the authority 

School to contract with other state instifor mental retardation residential services 

. 

tutions or agencies 

in San Antonio. The central questions are: 

P 1. Can the Austin State School use its 

appropriations to lease appropriate 

building facilities in San Antonio, 

Texas, from the Texas Department of 

Health Resources and to operate residential programs for the mentally 

retarded in such facilities? 

2. Can the Austin State School contract 

with the San Antonio State Hospital 

whereby the school will pay the hospital 

to provide in the City of San Antonio a 

residential program for mentally retarded 

persons? 

3. Can the Austin State School contract 

with the Texas Department of Mental Health 

and Mental Retardation acting for and on 

behalf of the San Antonio State School 

whereby the Austin State School will pay 

the San Antonio State School to provide 

a residential program in the City of San 

Antonio for mentally retarded persons? 

p.3646 
The Honorable Kenneth D. Gaver - page 2 (M-865) 

The Texas Department of Mental Health and Mental 

Retardation is composed of the Texas Board of Mental Health 

and Mental Retardation, the Commissioner, Deputy Commissioner, 

and staff, and the facilities and institutions by law made a 

part of the Department. V.T.C.S. art. 5547-202, 5 2.01. 

The San Antonio State Hospital and the San Antonio 

State School, as well as the Austin State School, are institutions which are by law made a part of the Department. 

V.T.C.S. art. 5547-202, 9 2.01; art. 3185(d); art. 3263g. 

The San Antonio State School was created in 1975 by article 

3263g, V.T.C.S., but no funds have ever been specifically 

appropriated by the Legislature for its operation. Funds 

have been appropriated to operate the San Antonio State 

Hospital and the "Austin State School and Branch" for the 

1976-1977 biennium. Acts 1975, 64th Leg., ch. 743, at 2473, 

2476. The phrase, "and Branch" in the Austin State School 

appropriation apparently refers to the Austin State School 

Annex, located in Austin. V.T.C.S. art. 5547-202, 6 2.01; 

art. 387133, § 12. 

A pertinent provision of the 1975 General Appropriations Act, specially applicable to the Department of Mental 

Health and Mental Retardation, specifies: 

NEW OR ADDITIONAL INSTITUTIONS. No money 

appropriated by this Article may be spent 

for constructing new or additional institutions, or for the purchase of sites 

therefor. without svecific authorization 

of the Legislature.‘ All institutions 

shall be kept where they are 

the Leqslature, 

locatedb 

and all new buildings 

Kbe constructed shall be on these sites 

unless otherwise specifically authorized 

by the Legislature. For the purpose of 

this Subsection, specific authorization 

may be granted either by basic statute 

or special authorization in this Act. 

Acts 1975, 64th Leg., ch. 743, at 2516. 

(Emphasis added). 

p.3647 
. 

The Honorable Kenneth D. Gaver - page 3 (H-865) 

A fair reading of the Appropriations Act restriction on 

the use of money for new or additional MH/MR institutions 

convincingly demonstrates that the Legislature intended to 

prohibit the Austin State School from using its appropriated 

money for the purpose of establishing itself at a new or 

different site. The word "purchase," when used in a statute 

designed to prevent certain results, can include any transaction lending itself to the accomplishment of what the 

statute is designed to prevent. Blau v. Lehman, 286 F.2d 

786, 792 (2d Cir. 1960), aff'd 368 U.S. 403 (1962). See 

~~~~~5~:2~2~3~;S;3875(~:~:2~;p.~7~~lf~~ 57 

Webb, 64 S.W. 792 (Tex. Civ. App. 1901, writ ref'd). 

The Legislature appropriated money for MH/MR contract 

treatment services rendered by community centers and provided 

money for state grants-in-aid to such centers, as authorized 

by articles 5547-203 and 5547-204, V.T.C.S. Acts 1975, 64th 

Leg., ch. 743, at 2463. However, we believe it did prohibit 

the use of any appropriated funds for the establishment of 

new or additional sites for the Austin State School. We 

therefore answer the three questions above in the negative, 

and your other questions, contingent upon affirmative answers 

to one or more of the central questions, are not reached. 

SUMMARY 

The Austin State School may not use funds 

appropriated to it by the 1975 General 

Appropriations Act to lease or otherwise 

acquire facilities in San Antonio for the 

operation of residential services programs 

for mentally retarded persons in Bexar 

County. 

,-Very truly yours, 

Attorney General of Texas 

p.3648 
. . 

. 

The Honorable Kenneth D. Gaver - page 4 (H-865) 

APPROVED: 

Opinion Committee 

jwb 

P.3649