Case Information
*1 The Attorney General of Texas March 14, 1983
JIM MATTOX
Attorney General
Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-12 Commissioner Supreme Court BuildinQ P. 0. Box 12546 Texas Department of Health Re: Whether community mental Austin. TX. 76711. 2346 1100 West 49th Street health/mental retardation 5121475-2501 Austin, Texas 78756 from licensing under Telex 9101674.1367 4442c, V.T.C.S. Tel+opier 512/475.0266 Dear Dr. Bernstein: lM)7 Main St.. Suite 1400 Oaltas. TX. 75201.4709
You ask the following two questions: 214/742.6944
1. Are community mental 4624 Alberta Ave.. Suite 160 exempt licensing under El Paso, TX. 79905.2793 4442~. V.T.C.S., they are already being operated within jurisdiction- of a state yAm33.3464
or federal governmental agency? 1L.d Dallas Ave.. Suite 202 Hotiston; TX. 77002.6986 If the answer to the first question is yes, 2. 7 131650-0666 state or federal governmental agency has over the centers? 806 Broadway. Suite 312 Lubbock. TX. 79401.3479 [00617476236] Your question convalescent arises from article and nursing 4442c, which provides homes by
Health unless those are exempted by section 2 of article. A 1981 amendment to article 4442;. V.T,C.S., in part: 4309 N. Tenth. Suite B McAllen. TX. 76501.1665 Sec. 2 (a) ‘Institution’ means sn establish- ment which furnishes (in single or multiple facilities) food and shelter four or more 200 Main Plaza. Suite 400 unrelated persons the proprietor, and, San Antonio. TX. 76205.2797 addition, provides minor’ treatment direction and supervision of a physician licensed by the Texas State Board of Medical Examiners, or An Equal Opportunity/ which meet some need beyond the basic Affirmative Action Employer food, shelter, and laundry. Nothing
in this Act shall apply to: . . . . a facility operated within jurisdic-
tion of a state or federal governmental agency, including but not limited to the . . . Texas and Mental Department Health Retardation . . . . (Emphasis added).
Acts 1981, 67th Leg., 2364, ch. 604, I1 at 2364. The exemption subsection 2(a)(b) is a new provision. YOU state in your letter the Department of Health has not licensed community mental health and mental retardation in the past.
The relevant statutes are the mental health 3347-201. The Department
Mental Retardation is established 3347-202. Community for mental services the authority 3347-203. V.T.C.S.. provides in section that the centers may be operated by counties, cities, hospital districts, school districts, or any combination thereof. This apparently places the control of the community centers the local government. However, 3.01A of the article that these centers are:
Intended to be vital components in a continuum of services the mentally ill and mentally retarded individuals state. (Emphasis added).
Section requires to provide assistance, advice, and consultation to
community centers, and authorizes to transfer ownership its personal property to the centers.
Article 3347-204. V.T.C.S., gives the Department of Mental Health and Mental Retardation the power grants-in-aid to community centers upon qualification Section 4.01 of authorizes to prescribe rules necessary to insure adequate services community centers. The board of trustees for each center must submit to the department a copy of a plan for an effective program.
V.T.C.S. art. 04.02. A community is eligible grants-in-aid if it qualifies according regulations of the department. Id. 04.03. Thus, the department has considerable authority to regulatehe community centers which receive grants-in-aid from it.
The Department and Mental Retardation has submitted letter describing its method of regulating centers: the current practice each Into a performance contract with the
department in order to receive state grant-in-aid funds. Each performance contract contains assurances by the community that it will _- adhere to various of the commissioner that affect community centers and allows for access by to all records of the community for monitoring purposes. Although centers the creation of a governmental subdivision, they are in the continuum of state services. In order grants-in-aid, into performance contracts with.the Department of Mental Health and Mental Retardation consistent with the mental health 3347-201, In our opinion. community centers are under of the Department
Retardation, and therefore exempt by section 2(a)(6) 4442~. by the Department of Health.
Our conclusion consistent the prior opinions of office. Attorney General Opinion C-384 determined that community mental health and mental retardation centers are agencies of state, that the Department and’ Mental controls the supervision and operation
Another opinion of this office concluded that the governor could transfer from the Department of Health to the Department Health and Mental Retardation the responsibilities for administering and supervising state plans for the construction of menta.1 retardation facilities. Attorney General Opinion No. C-391 (1966). Attorney General Opinion M-314 (1968)) in concluding that
Mental Health and Mental Retardation could not require all mental health and mental retardation to match grants-in-aid on fifty-fifty basis. established that could impose requirements on community health centers, so long as the requirements were not arbitrary.
Our conclusion is also supported by the legislative history The Senate. Committee on 2(a)(6) of article. 4442~. V.T.C.S. Human Resources took testimony from a representative of the Department of Health. Tape of Senate Committee on Human Resources Meeting, April 21, 1981, filed in Senate Staff Services Offices. The witness stated the Health Department was at present not certain operated the Texas Department Mental Retardation. The purpose the amendment was not to change the existing practice, but merely to codify.it. is our conclusion community mental health pursuant
,- - Psge 4 ?
V.T.C.S., are exempt by the Department of Health under 4442, V.T.C.S. SUMMARY
Community centers for mental health and mental retardation, as established under article are under the
4442c, V.T.C.S., and Mental Retardation.
JIM MATTOX Attorney General of Texas TOM GREEN
First Assistant Attorney General DAVID R. RICHARDS ,-. Executive Assistant Attorney General Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED: ‘4 : OPINION COMMITTEE Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger