November 12, 1971 

Honorable David Wade, M.D. Opinion No. M-995 

Commissioner 

Texas Department of Mental Health Re: Whether the Texas Deand Mental Retardation partment of Mental 

Box 12668, Capitol Station Health and Mental ReAustin, Texas 78711 tardation or the State 

Board of Control is 

authorized to contract 

with the Texas Department of Corrections 

for construction of a 

dam at the Leander Rehabilitation Center, a 

facility of the Texas 

Department of Mental 

Health and Mental ReDear Dr. Wade: tardation. 

Your request for an opinion reads in part as follows: 

"This Department is interested in constructing a dam at one of its facilities, the Leander 

Rehabilitation Center, to create a lake to be 

used for the purposes authorized in Article 3263f, 

Vernon's Annotated Civil Statutes. The Texas Department of Corrections has the capability of performing such a construction project for this Department and is agreeable to do so provided same is 

legally authorized. It would appear that Article 

634-l/2, V.A.T.S., would have authorized the State 

Board of Control at the time it was responsible for 

the eleemosynary institutions of this State to have 

contracted with the Texas Department of Corrections 

for the use of equipment, materials and the labor of 

trusty State convicts to be used in connection with 

the construction of a project such as is proposed at 

the Leander Rehabilitation Center. The powers and 

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Hon. David Wade, M.D., page 2 (M-995) 

duties of the State Board of Control with respect 

to eleemosynary institutions were transferred to the 

Board for Texas State Hospitals and Special Schools 

pursuant to Article 317433, Section 2, V.A.T.S. 

Such powers are presently vested in the Texas 

Department of Mental Health and Mental Retardation under the terms of Article 5547-202, Section 

2.16(a), V.A.T.S. 

"Wherefore, your opinion and advice with respect to the following questions is respectfully 

requested: 

“1. Is the Texas Department of Mental Health 

and Mental Retardation authorized to contract with 

the Texas Department of Corrections for the use of 

equipment, materials and the labor of trusty State 

convicts for the construction of a dam at the 

Leander Rehabilitation Center? 

“2 . Is the State Board of Control authorized 

to contract with the Texas Department of Corrections 

for the use of equipment, materials and the labor 

of trusty State convicts for the construction of a 

dam at the Leander Rehabilitation Center, a facility 

of the Texas Department of Mental Health and Mental 

Retardation?" 

Article 634-l/2, Vernon's Civil Statutes, provides: 

"The Board of Control is hereby authorized to 

make contracts with the State Prison Board for the 

purchase of supplies, equipment and materials for 

use by other State institutions, including food, 

supplies, clothing, shoes, metal utensils and appliances, furniture and fixtures, and any and all 

other supplies or agricultural or manufactured 

products, binding, other labor for use of the State 

in any of its Departments, Commissions, Boards, Offices, or eleemosynary or educational institutions, 

including any and all supplies, equipment, material 

or labor purchased or used by, or for the State, 

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Hon. David Wade, M.D., page 3 (M-995) 

under the direction of the Board of Control." 

Section 2 of Article 317433, Vernon's Civil Statutes, 

provides: 

"Sec. 2. Upon the effective date of this 

Act, the Governor shall appoint the Board provided in this Act and the Board shall proceed to 

organize as required by Section 5 of this Act and 

employ the Executive Director and such other personnel necessary to carry out the provisions of 

this Act. Effective September 1, 1949, the control and management of, and all rights, privileges, 

powers, and duties incident thereto including 

building, design and construction of the Texas 

State Hospitals and Special Schools which are now 

vested in and exercised by the State Board of 

Control shall be transferred to, vested in, and 

exercised by the Board for Texas State Hospitals and 

Special Schools. Provided, however, that the Board 

of Control shall continue to handle purchases for 

such institutions in the same manner as they do 

for other State agencies." 

Section 2.16 of Article 5547-202, Vernon's Civil Statutes, provides in part: 

"Sec. 2.16. (a) All powers, duties, and 

functions relating to the commitment, care, treatment, maintenance, education, training, and rehabilitation of mentally ill or mentally retarded 

persons, or relating to the administration of 

mental health or mental retardation services, previously vested in the Board for Texas State Hospitals 

and Special Schools and in the Division of Mental 

Health and the Office of Mental Health Planning of 

the State Department of Health, are transferred to 

the Texas Department of Mental Health and Mental 

Retardation." 

We note that the provisions of Article 634-l/2, 

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Hon. David Wade, M.D., page 4 (M-995) 

Vernon's Civil Statutes, relate to the general power of the 

Board of Control to purchase supplies, equipment, etc., for 

agencies of the State generally, rather than relating to the 

care and treatment of mentally ill and mentally retarded persons. Furthermore, its provisions do not relate to the control 

and management of the Texas State Hospitals and Special Schools. 

It is therefore our opinion that the powers of the Board of 

Control provided in Article 634-l/2 were not transferred to 

the Texas Department of Mental Health and Mental Retardation. 

In Attorney General's Opinion O-5038 (1943) it was 

held that the provisions of Article 634-l/2 refer only to the 

State Board of Control and do not give any other board or 

agency of the State the powers therein contained. It was 

further held that the provisions of Article 2647, Vernon's 

Civil Statutes, providing for the general powers of the Board 

of Regents of the State Teachers Colleges to manage and control 

all State Teachers Colleges, did not authorize such board to 

make a contract with the State Prison Board for the construction 

of proposed buildings. 

In view of the foregoing, your first question is 

answered in the negative, and you are advised that the Texas 

Department of Mental Health and Mental Retardation is not authorized to contract with the Texas Department of Corrections 

for use of equipment, materials and the labor of State convicts for the construction of a dam at the Leander Rehabilitation Center. 

Article 634-l/2 is a part of Chapter 3 of Title 20 

of the Revised Civil Statutes of Texas, 1925, as amended, which 

Chapter relates to the powers and duties of the Purchasing 

Division of the Board of Control. None of the provisions of 

Article 634-l/2 authorize the Board of Control to enter into 

construction contracts. The contract in question is a construction contract, that is, one for the construction of a 

dam at the Leander Rehabilitation Center. It is therefore 

our opinion that Article 634-l/2 is not applicable to such 

construction work. You are accordingly advised that the State 

Board of Control is not authorized to contract with the Texas 

Department of Corrections for the use of equipment, materials 

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I . 

Hon. David Wade, M.D., page 5 (M-995) 

and labor of State convicts for the construction of a dam at 

the Leander Rehabilitation Center. 

SUMMARY 

Neither the Texas Department of Mental Health 

and Mental Retardation ncr the State Board of 

Control is authorized to contract with the Texas 

Department of Corrections for the construction of 

a dam located at the Leander Center. 

Prepared by John Reeves 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Pat Bailey 

Harriet Burke 

Linward Shivers 

SAM MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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