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.
Inyour recent request onbehalf of the Harris County Commissioners Court you ask our opinion on the following' questions:"1. ISthe Harris County Commissioners Court (asthe governing body ofHarris 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 theHarris County Community Mental Health and Mental Retardation Center isan agency of the state, can the Commissioners Court (byresolution entered in itsminutes) convert it into a county department?" Respecting question one,Article 5547-203. Section 3.01(a) Vernon's Civil Statutes, provides, inpart, as follows:

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"Local agencies which may establish and operate community centers are a county, a city, ahospital district, a school district, or any organizational combination of two (2)ormore of these.
. . " Section 3.02(a) of the sameArticle provides inpart: "Theboard 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 tobe served abdard of trustees consisting of not less than five (5)normore than nine (9) persons. . .'
From the above quoted portions of the statute it is our opinion that the Harris County Commissioners Court isauthorized to act as the Board of Trustees of the Harris County Community Mental Health andMental Retardation Center. With respect to question two as towhether a community center isan agency of the state or a county department, we must look to thewhole Act as codified inArticles 5547-201 through 5547-204, Vernon's Civil Statutes. The agencies of the state that are created by theAct to accomplish the required mental health purposes are the Texas Department ofMental Health andMental Retardation and the community centers, which under Section 3.14 ofArticle 5547-203, in collecting fees for treatment of non-indigents, isgranted II

. . .the same rights, privileges and powers granted to the Texas Department ofMental Health andMental Retardation." Other "local agencies" mentioned in Section 3.01(a) of theAct are counties, hospital districts, school districts, andmunicipalities. These are agencies of the state also. SeeVol. 40, 

### words& Phrases, p. 27, "StateAgency", and cases there annotated.

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The purpose and policy as expressed by the Legislature is found inArticle 5547-201, Section 1.01 (a)and (b).

"1.01(a)o It is the purpose of thisAct to provide for the conversation and restoration of mental health among the people of this state, and toward this end toprovide for the effective administration and coordination ofmental health services at the state and local levels, and to provide, coordinate, develop and improve services for thementally 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 aspossible. "(b)e The legislature declares that thepublic policy of this state is to encourage local agencies and private organizations to assume responsibility for the effective administration ofmental health and mental retardation services, with the assistance,, cooperation, and support of the Texas Department ,of Mental Health and..MentalRetardation created by this Act." Article 3 of the,Act deals with the creation, organkation, powers and duties of community centers. Whi.lecommunity centers come into existence through avoluntary 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 adelegated portion of the sovereign power of the state andwhich do not exist independent of the statebut which are allocated statemonies orproperty by the state department and operate under the department's rules and regulations. Section 4.01, et seq. ofArti,cle5542-203. The community centers thus meet the legal criteria of an agency of the state. SeeAllis-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);40Words & Phrases 2'7."StateAgency."

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InAttorney General's Opinion C-584 (1966)this office held that community centers were agencies of the state as follows:

"It thus appears that the conmrunitycenters which would be established underArticle 3of House Bill 3,Acts of the 59thLegislature, 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 soas 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 itunless clearly wrong. Thomas v. Grobl, 147 Tex. 70, 212 S.W.Zd 625 (1948). Furthermore, it is thepolicy of this office to follow an earlier opinion on the same subject in the absence of some change inthe lawby court decision or otherwise unless the opinion is shown tobe clearly wrong. Attorney General's Opinion No.M-605 (1970). Having held that a community center isan "agency of the state", we stress, however, thatwe are not thereby holding that it isa "state agency". A legal distinction exists to distinguish the two terms and they are not synonymous. The term "state officer" isnot synonymous with "officer of the state". since by the former term ismeant onewho 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 seeWillis 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 forpurposes of dual office holding.
Ourholding inOpinion No.M-538 (1969) isaccordingly to be distinguished from the present holding, for in that opinion we held that a community center was not subject to the Texas Tort ClaimsAct, Article 6252-19. Our rationale was that the Legislature intended by theAct tomake the state liable for

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certain torts wherein the tort was committed by adefined "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 isderived by the Constitution or laws passed pursuant to.the Constitution. We concluded in the opinion that the community center did not fairly fallwithin the definition, itbeing merely a component part of such a "defined" unit of government which is **“ created** **’** eitherby unilateral action or contract by Orbetween designated local governmental bodies". A community center isnot apolitical subdivision, except where by statutory definitibn it ismade so for certain purposes. norwithin contemplation of the Tort Claims Act an agency created by the Constitution or a law enacted pursuant thereto. Nor, under thatAct is it such a unit of government which with other agencies collectively constitutes the government of **the** State of Texas. Ithas no power to tax or raise revenues and nopower of eminent domain. Itexercises nopower 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. Incarrying out ,andadministering itsprogram, it is acting as an agent of the state. Yet it isnot 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 itby the Consti,tutionor statutes. **Art.** V, Sec. 18,Tex.Const. andArt. 2351,V.C.S. We find no authority in these or inany other provis.i.ons of law for it to change by resolution a comm'unitycenter into a county department.

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Hon. Joe Resweber, page 6 ( 266)

SUMMARY The Harris County Commissioners' Court isauthorized under Article 5547-203, Section 3.02(a), Vernon's Civil Statutes, to act as theboard of trustees for the Harris County Community Mental Health and Mental Retardation Center. Such a community center isan agency of the state and as such cannot be changed into a county department by resolution of county commissioners' court. Very&tuly yours,

Attorvy 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 FirstAssistant

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