Case Information
*1 The Attorney General of Texas
September 10, 1979 Attorney General Opinion No. MW- 5 5
Commissioner
Texas Department of Mental Health Re: Authority of Department and Mental Retardation Health and Mental Mental Box 12668 Retardation to pay Austin, Texas 78711 to receiving services.
Dear Dr. Kavanagh:
You ask whether a facility of the Texas Department of Mental Health and Mental Retardation to contract with a community created pursuant to article X47-203, V.T.C.S., to plan, develop, and provide services. Although you have provided us with community-based examples of specific contracts which illustrate your inquiry, neither your question nor our answer is specifically directed to the details of those contracts. of Mental Health and Mental Retardation
consists the Board of Mental Health and Mental Retardation, commissioners, staff members, and thirty facilities, including state hospitals. V.T.C.S. art. 5547-202, § 2.01. All administrative, rule-making, and decisional powers granted by article 5547-202 are vested commissioner, to policies formulated by the board. V.T.C.S. art. 5547-202, § 2&b). Section 2.13 of article 5547-202 provides as follows: The Department may cooperate, negotiate and contract with local agencies . . . [and1 community . . . to plan, develop and provide community- based mental health and mental
Section 2.17(a) provides:
From funds available it the Department is authorized to provide mental the operation of halfway houses, community centers, and other mental health and mental retardation services programs. *2 - Page Two (HW-55)
These provisions authorize to contract with community to provide mental Since section 2.llfb) vests department’s administrative and decisional powers in the commissioner, to board policy, agreements between a facility of the department and a community center must have his approval. The contract terms must be consistent with board policy.
You next ask whether a facility of the Texas Department of Mental Health and Mental Retardation to pay the community such services to clients as consideration for the center’s planning and
developing such services. It is suggested that payment in advance of the provision of services violates article III, section 50 of the Texas Constitution, which provides:
The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State in aid of, or to any person, amociation or corporation, whether municipal or otho,,, or to pledge the credit the State in any manner whatsoever, for the payment liabilities, present or prospective, of any individual, association of individuals, municipal or other corporation whatsoever.
Article III, section 52, a similar constitutional provision, prohibits the legislature authorizing political subdivisions to lend their credit or grant public money to individuals or corporations. In construing this provision, a Texas court stated as follows:
Many cases could be cited which involve an arrangement between
two governmental entities in which one rendered agreed services the other in exchange for money paid at a different time than when services were rendered,. . . Two requirements must be met in such a transaction. (11 The purpose for which the obligation or payment or transfer was made must be within the Dower of the entitv incurring the obligation or making the payment or transfer 01 funds. City of Aransas Pass v. Keeling, ll2 Tex. 339, 247 S.W. 818 (1923). (2) The political receives the funds has to be obligated (by statute or contract1 to use the funds for the public purpose. Road District No. 4, Shelby County v. Alred [sic], 123 Tex. 77, 68 S.W.2d 164 (19341.
State ex rel. Grimes County Taxpayers Association v. Texas Municipal Power Agency, 565 S.W.2d 258, 265 (Tex. Civ. App. - Houston [lst Dist.1 1978, no writ). The court determined that payments by four cities to the Texas Municipal Power Agency were not grants, donaticns, or gratuities, but instead “‘.:ere payments made for services rendered and to be rendered.” Supra at 265. These payments do not violate article 3, section 52 of the co::stitution. See also San Antonio River Authority v. Sheooerd, 299 S.W.2d 920 (Tex. 1957) (county could pay tax money to reclamation authority to furnish flood control program over 30-year period); Attorney General Opinion H-74 (19731 (Blind Commission may advance to its employees expenses to be incurred). In our opinion, article III, section *3 - Page Three 50 does not prohibit advance payment by one governmental entity for services which another governmental is obligated to render in the future.
It is also suggested that the following statute presents the only instance in which one agency of the state may make an advance payment to another:
All State Agencies and Institutions are authorized to make advance payments to Federal and State Agencies for merchandise purchased from such agencies when advance payments will expedite the delivery of the merchandise.
V.T.C.S. art. 658a. In our opinion, this statute provides an exception to articles 655 through 658, V.T.C.S., relating to payment for goods and services purchased through Board of Control. These provisions require payment for goods and services only after they have been inspected by the recipient agency and the invoice has been approved by the Board of Control and the Comptroller. We believe these provisions and the exception found in article 658a apply only to services purchased the Board of Control. We find no indication in sections Z.ll(b) and 2.17(a) of article 5547-202 must work through the Board of Control to purchase mental health and mental services from a community center. Article 664-3, V.T.C.S., the State Purchasing Act of 1957, authorizes the Board of Control to contract for “only services of the type heretofore contracted for by the State Board of Control. . . .I’ Sec. 3(b). Cf. Attorney General Opinion M-316 (1968) (community centers may not make purchases through Board of Control). We do not believe that article 658a, V.T.C.S., bars the department from paying start-up to receiving mental health or mental services centers. Any contract must of course be properly entered into as stated answer to your first question.
SUMMARY of Mental Health and Mental Retardation may contract with community to provide community-based The department may pay the community their start-up such to clients. Attorney General of Texas JOHN TV. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General *4 - Page Four
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Martha Allen
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 176