Honorable Joe Resweber 

County Attorney 

Harris County Courthouse 

Houston, Texas 77002 

Dear Mr. Resweber: 

Opinion No. M-1266 

Re: Whether the Harris County 

Community Mental Health and 

Mental Retardation Center is 

an agency of the State or 

county agency and related 

questions. 

In your recent request on behalf of the Harris County 

Commissioners Court you ask our opinion on the following' 

questions: 

"1. IS the Harris County Commissioners 

Court (as the governing body of Harris County) 

authorized to act as the Board of Trustees for 

the Harris County Community Mental Health and 

Mental Retardation Center? 

"2 . Is the Harris County Community Mental 

Health and Mental Regardation Center a county 

department or an agency of the state? 

"3. If the Harris County Community Mental 

Health and Mental Retardation Center is an 

agency of the state, can the Commissioners Court 

(by resolution entered in its minutes) convert it 

into a county department?" 

Respecting question one, Article 5547-203. Section 3.01(a) 

Vernon's Civil Statutes, provides, in part, as follows: 

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Hon. Joe Resweber. page 2 (M-1266) 

"Local agencies which may establish and 

operate community centers are a county, a city, 

a hospital district, a school district, or any 

organizational combination of two (2) or more 

of these. . . " 

Section 3.02(a) of the same Article provides in part: 

"The board of trustees of community centers 

established by a single city, county, hospital 

district or school district may be the governing 

body of the single city, county, hospital district 

or school district, or that governing body may 

appoint from among the qualified voters of the 

region to be served a bdard of trustees consisting 

of not less than five (5) nor more than nine (9) 

persons. . .' 

From the above quoted portions of the statute it is our 

opinion that the Harris County Commissioners Court is authorized 

to act as the Board of Trustees of the Harris County Community 

Mental Health and Mental Retardation Center. 

With respect to question two as to whether a community center 

is an agency of the state or a county department, we must look 

to the whole Act as codified in Articles 5547-201 through 5547-204, 

Vernon's Civil Statutes. 

The agencies of the state that are created by the Act to 

accomplish the required mental health purposes are the Texas 

Department of Mental Health and Mental Retardation and the 

community centers, which under Section 3.14 of Article 5547-203, 

in collecting fees for treatment of non-indigents, is granted 

II . . . the same rights, privileges and powers granted to the Texas 

Department of Mental Health and Mental Retardation." Other 

"local agencies" mentioned in Section 3.01(a) of the Act are 

counties, hospital districts, school districts, and municipalities. 

These are agencies of the state also. See Vol. 40, words & 

Phrases, p. 27, "State Agency", and cases there annotated. 

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Hon. Joe Resweber, page 3 (M-1266) 

The purpose and policy as expressed by the Legislature is 

found in Article 5547-201, Section 1.01 (a) and (b). 

"1.01(a) o It is the purpose of this Act to 

provide for the conversation and restoration of 

mental health among the people of this state, and 

toward this end to provide for the effective 

administration and coordination of mental health 

services at the state and local levels, and to 

provide, coordinate, develop and improve services 

for the mentally retarded persons of this state to 

the end that they will be afforded the opportunity 

to develop their respective mental capacities to 

the fullest practicable extent and. to live as useful 

and productive lives as possible. 

"(b) e The legislature declares that the public 

policy of this state is to encourage local agencies 

and private organizations to assume responsibility 

for the effective administration of mental health 

and mental retardation services, with the assistance,, 

cooperation, and support of the Texas Department ,of 

Mental Health and..Mental Retardation created by this 

Act." 

Article 3 of the,Act deals with the creation, organkation, 

powers and duties of community centers. Whi.le community centers 

come into existence through a voluntary establishment by a 

"local agency" under authority of the enabling legislation of 

Article 5547-203. Section 3.01, once established a center becomes 

a juristic entity with an administrative board, a director and 

employees, which exercise a delegated portion of the sovereign 

power of the state and which do not exist independent of the 

state but which are allocated state monies or property by the 

state department and operate under the department's rules and 

regulations. Section 4.01, et seq. of Arti,cle 5542-203. The 

community centers thus meet the legal criteria of an agency of 

the state. See Allis-Chalmers Mfq, Co. v. Curtis Electrical Co., 

259 s.w.2a 919-920-921, aff'a 153 Tex. 118, 264 s.w.za 700, 701 

(1954); 40 Words & Phrases 2'7. "State Agency." 

-ball- 
Hon. Joe Resweber, page 4 (M-1266) 

In Attorney General's Opinion C-584 (1966) this office held 

that community centers were agencies of the state as follows: 

"It thus appears that the conmrunity centers 

which would be established under Article 3 of 

House Bill 3, Acts of the 59th Legislature, Regular 

Session, 1965, become an aqencv of the State of 

Texas . . .'I (Emphasis added.) 

Since 1966, the Legislature has met numerous times and has 

not seen fit to amend the statute so as to alter the affect of 

our holding, which has been followed up to this time. Under 

these circumstances, our opinion is entitled to great weight in 

the courts, which will follow it unless clearly wrong. Thomas v. 

Grobl, 147 Tex. 70, 212 S.W.Zd 625 (1948). Furthermore, it is 

the policy of this office to follow an earlier opinion on the 

same subject in the absence of some change in the law by court 

decision or otherwise unless the opinion is shown to be clearly 

wrong. Attorney General's Opinion No. M-605 (1970). 

Having held that a community center is an "agency of the 

state", we stress, however, that we are not thereby holding 

that it is a "state agency". A legal distinction exists to 

distinguish the two terms and they are not synonymous. The 

term "state officer" is not synonymous with "officer of the 

state". since by the former term is meant one who exercises 

statewide jurisdiction and duties as distinguished from one 

exercising more limited or localized jurisdiction and duties. 

81 C.J.S. 969-970. States, Sec. 52; and see Willis v. Potts, 

377 S.W.Zd 622 (Tex.Sup. 1964). wherein the court held that a 

city councilman was not a state officer but was holding an 

office under the state for purposes of dual office holding. 

Our holding in Opinion No. M-538 (1969) is accordingly to 

be distinguished from the present holding, for in that opinion 

we held that a community center was not subject to the Texas 

Tort Claims Act, Article 6252-19. Our rationale was that the 

Legislature intended by the Act to make the state liable for 

-6212- 
Hon. Joe Resweber, page 5' (M-1266) 

certain torts wherein the tort was committed by a defined "unit 

of government": that is, the State of Texas and those state 

agencies "which collectively constitute the government of the 

State of Texas"; all politidal subdivision, c'ities, counties, 

and schools and other enumerated districts and authorities: 

and all those institutions, agencies and organs of govermnent 

whose status and authority is derived by the Constitution or laws 

passed pursuant to.the Constitution. We concluded in the opinion 

that the community center did not fairly fall within the definition, 

it being merely a component part of such a "defined" unit of government which is “created’ either by unilateral action or contract by 

Or between designated local governmental bodies". A community 

center is not a political subdivision, except where by statutory 

definitibn it is made so for certain purposes. nor within contemplation of the Tort Claims Act an agency created by the Constitution 

or a law enacted pursuant thereto. Nor, under that Act is it 

such a unit of government which with other agencies collectively 

constitutes the government of the State of Texas. It has no 

power to tax or raise revenues and no power of eminent domain. 

It exercises no power of local self government; but it.does 

administer mental health and mental retardatidn programs as approved and regulated by a state agency which controls the amount 

of funds it receives for that purpose. In carrying out ,and administering its program, it is acting as an agent of the state. Yet 

it is not such a state agency as defined and as is, contemplated 

for tort liability by the Texas Tort Claims Act, 

With regard to question three, the Commission&s' Court is 

a constitutional entity exercising only such powers as are conferred upon it by the Consti,tution or statutes. Art. V, Sec. 

18, Tex.Const. and Art. 2351, V.C.S. We find no authority in 

these or in any other provis.i.ons of law for it to change by 

resolution a comm'unity center into a county department. 

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-. . 

Hon. Joe Resweber, page 6 ( 266) 

SUMMARY 

The Harris County Commissioners' 

Court is authorized under Article 5547-203, 

Section 3.02(a), Vernon's Civil Statutes, 

to act as the board of trustees for the 

Harris County Community Mental Health and 

Mental Retardation Center. Such a community 

center is an agency of the state and as such 

cannot be changed into a county department 

by resolution of county commissioners' court. 

Very &tuly yours, 

Attor 

v 

y General of Texas 

Prepared by Harry C. Green 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

James Hackney 

Lynn Taylor 

Harriet Burke 

Jack Goodman 

SAMUEL D. MCDANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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