November 12,1971

Honorable David Wade, M.D. Opinion No. M-995 Commissioner Texas Department ofMental Health Re: Whether the Texas Deand Mental Retardation partment ofMental Box 12668, Capitol Station Health andMental 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 ofMental Health andMental ReDear Dr.Wade: tardation.

Your request for an opinion reads inpart as follows:

"ThisDepartment is interested in constructing adam at one of its facilities, the Leander Rehabilitation Center, to create a lake tobe used for the purposes authorized inArticle 3263f, Vernon's Annotated Civil Statutes. The Texas Department of Corrections has the capability ofperforming such a construction project for this Department and isagreeable to do soprovided same is legally authorized. Itwould appear thatArticle 634-l/2, V.A.T.S., would have authorized the State Board of Control at the time itwas responsible for the eleemosynary institutions of this State tohave contracted with the Texas Department of Corrections for the use of equipment, materials and the labor of trusty State convicts tobe used in connection with the construction of aproject such as isproposed at the Leander Rehabilitation Center. The powers and

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duties of the State Board of Control with respect to eleemosynary institutions were transferred to the Board forTexas State Hospitals and Special Schools pursuant toArticle 317433,Section 2,V.A.T.S. Such powers are presently vested in the Texas Department ofMental Health and Mental Retardation under the terms ofArticle 5547-202, Section 2.16(a), V.A.T.S.
"Wherefore, your opinion and advice with respect to the following questions isrespectfully requested:

**“ 1.**  Is the Texas Department ofMental Health and Mental Retardation authorized to contract with the Texas Department ofCorrections 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 ofMental Health andMental Retardation?"

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

"TheBoard of Control ishereby authorized to make contracts with the State Prison Board for the purchase of supplies, equipment andmaterials 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 ormanufactured products, binding, other labor for use of the State inany of itsDepartments, Commissions, Boards, Offices, or eleemosynary or educational institutions, including any and all supplies, equipment, **material** or laborpurchased orused by, or for the State,
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under the direction of the Board of Control."
Section 2ofArticle 317433,Vernon's Civil Statutes, provides:

"Sec. 2. Upon the effective date of this Act, the Governor shall appoint the Board provided in thisAct and the Board shall proceed to organize as required by Section 5of thisAct and employ the Executive Director and such other personnel necessary to carry out the provisions of thisAct. Effective September 1, 1949, the control andmanagement 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 inand 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 tohandle purchases for such institutions in the same manner as they do for other State agencies."

Section 2.16 ofArticle 5547-202, Vernon's Civil Statutes, provides inpart:

"Sec. 2.16. (a)All powers, duties, and functions relating to the commitment, care, treatment, maintenance, education, training, and rehabilitation ofmentally ill ormentally retarded persons, or relating to the administration of mental health ormental retardation services, previously vested in the Board forTexas State Hospitals and Special Schools and in the Division ofMental Health and the Office ofMental Health Planning of the State Department of Health, are transferred to the Texas Department ofMental Health andMental Retardation."

We note that theprovisions ofArticle 634-l/2,

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Vernon's Civil Statutes, relate to the general power of the Board of Control topurchase supplies, equipment, etc., for agencies of the State generally, rather than relating to the
care and treatment ofmentally ill andmentally retarded persons. Furthermore, itsprovisions do not relate to the control andmanagement of the Texas State Hospitals and Special Schools. It is therefore our opinion that thepowers of the Board of Control provided inArticle 634-l/2 were not transferred to theTexas Department ofMental Health andMental Retardation.

InAttorney General's Opinion O-5038 (1943) itwas held that theprovisions ofArticle 634-l/2 refer only to the State Board of Control and donot give any otherboard or agency of the State the powers therein contained. Itwas further held that the provisions ofArticle 2647,Vernon's Civil Statutes, providing for the general powers of the Board of Regents of the State Teachers Colleges tomanage 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.

Inview of the foregoing, your first question is answered in thenegative, and you are advised that the Texas Department ofMental Health andMental Retardation isnot 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 apart of Chapter 3 ofTitle 20 of the Revised Civil Statutes of Texas, 1925, as amended, which Chapter relates to thepowers 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 inquestion is a construction contract, that is,one for the construction of a dam at the Leander Rehabilitation Center. It is therefore
our opinion thatArticle 634-l/2 isnot applicable to such construction work. You are accordingly advised that the State Board of Control isnot authorized to contract with the Texas Department of Corrections for the use of equipment, **materials**

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.

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 ofMental Health andMental Retardation ncr the State Board of Control isauthorized to contract with theTexas 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

SAMMCDANIEL Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLAWHITE First Assistant

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