### r THE .~.TTOIRNEV GENERAL OFTEXAS
AUSTIN,TEXAR 78711

The Honorable Kenneth D. Gaver Opinion No. H-865 Commissioner Texas Department ofMental Health Re: Authority of DepartandMental Retardation ment ofMH/MR to operate P. 0. Box 12668, Capitol Station residential programs for Austin, Texas 78711 thementallv retarded in SanAntonio; and related questions.
Dear Dr. Gaver:
You have asked of theAustin State

.. several questions regarding the authority School to contract with other state instiformental retardation residential services

. tutions or agencies in SanAntonio. The central questions are:

P 1. Can theAustin State School use its appropriations to lease appropriate building facilities in SanAntonio, Texas, from the Texas Department of Health Resources and tooperate residential programs for thementally retarded in such facilities?
2. Can theAustin State School contract with the SanAntonio State Hospital whereby the school will pay the hospital to provide in the City of SanAntonio a residential program formentally retarded persons?
3. Can theAustin State School contract with the Texas Department ofMental Health andMental Retardation acting for and on behalf of the SanAntonio State School whereby theAustin State School will pay the SanAntonio State School toprovide a residential program in the City of San Antonio formentally retarded persons?

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

The Texas Department ofMental Health andMental Retardation is composed of the Texas Board ofMental Health and Mental Retardation, the Commissioner, Deputy Commissioner, and staff, and the facilities and institutions by lawmade a part of the Department. V.T.C.S. art. 5547-202, 5 2.01. The SanAntonio State Hospital and the SanAntonio State School, aswell as theAustin State School, are institutions which are by lawmade apart of the Department. V.T.C.S. art. 5547-202, 9 2.01; art. 3185(d); art. 3263g. The SanAntonio 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 SanAntonio 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 theAustin State School appropriation apparently refers to theAustin State School Annex, located inAustin. 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 ORADDITIONAL INSTITUTIONS. Nomoney appropriated by thisArticle 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 newbuildings 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 theAppropriations Act restriction on the use ofmoney for new or additional MH/MR institutions convincingly demonstrates that the Legislature intended to prohibit theAustin State School from using its appropriated money for thepurpose of establishing itself at a new or different site. Theword "purchase," when used in a statute designed toprevent certain results, can include any transaction lending itself to the accomplishment ofwhat the statute isdesigned to prevent. Blau v. Lehman, 286 F.2d 786, 792 (2dCir. 1960), aff'd 368U.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 forMH/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 itdid prohibit the use of any appropriated funds for the establishment of new or additional sites for theAustin State School. We therefore answer the three questions above in the negative, andyour other questions, contingent upon affirmative answers to one ormore of the central questions, are not reached.
SUMMARY The Austin State School may not use funds appropriated to itby the 1975 General Appropriations Act to lease or otherwise acquire facilities in San Antonio for the operation of residential services programs formentally 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