THE ATTORNEY GENERAL
OF TEXAS
June 2, 1989
Honorable D. C. (Jim) Dozier Opinion No. JM-1052
Montgomery County Attorney
Courthouse Re: Responsibilities of the
Conroe, Texas 77301 Montgomery County Hospital
District with regard to indi-
gent health care (RQ-1625)
Dear Mr. Dozier:
You ask a number of questions about article IX, sections
9 and 13, of the Texas Constitution. Because your questions
require a careful reading of the two constitutional pro-
visions you ask about, we will discuss the language and
history of those two provisions before we address your
specific questions.
Article IX, section 9, provides in part:
The Legislature may by law provide for the
creation, establishment, maintenance and
operation of hospital districts composed of
one or more counties . or all
... or any .part. of
one or more counties witn power to issue
bonds for the purchase, construction,
acquisition, repair or renovation of
buildings and improvements and equipping
same, for hospital purposes; providing for
the transfer to the hospital district of the
title to any land, buildings, improvements
and equipment located wholly within the
district which may be jointly or separately
owned by any city, town or county, providing
that anv district so created shall assume
full resnonsibilitv for vrovidina medical and
hosvital care for its needv inhabitants and
assume the outstanding indebtedness incurred
by cities, towns and counties for hospital
purposes prior to the creation of the
district, . . . providing that after its
creation no other municivalitv or volitical
subdivision shall have the vower to levy
taxes or issue bonds or other obliaations for
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Honorable D. C. (Jim) Dozier - Page 2 (JM-1052)
hosvital vurnoses or for vrovidina medical
gare within the boundaries of the dis-
trict . . . . (Emphasis added.)
See also Tex. Const. art. IX, 5 4 (a 1954 amendment
providing for the creation of county-wide hospital districts
in counties with a population of 190,000 or more).
Article
. section 9, which was_. adopted
IX, ._. . . in 1962,
contains two speciric statements regarding tne obligations
of hospital districts: (1) hospital districts are to assume
full responsibility for providing medical and hospital care
for their needy inhabitants, and (2) hospital districts are
to assume the outstanding indebtedness incurred before the
creation of the district for hospital purposes by cities,
towns and counties within the district. Article IX, section
9, also contains a prohibition applicable to other political
subdivisions: It prohibits other political subdivisions
within the boundaries of a hospital district from expending
funds for any type of medical care, not just medical care
for the needy.
In 1966 this office issued an opinion that considered
whether a county that was included within the boundaries of
a hospital district could spend money to establish a
community center for mental health and mental retardation
services in accordance with the provisions of article
5547-203, V.T.C.S. Attorney General Opinion C-646 (1966).
The opinion concluded that mental health and mental
retardation services constituted medical care and that
therefore a county that lay within the boundaries of a
hospital district could not spend money to establish a
facility to provide such services.
The next year, apparently in response to Attorney
General Opinion C-646, the voters adopted article IX,
section 13, of the constitution, which provides:
Notwithstanding any other section of this
article, the Legislature in providing for the
creation, establishment, maintenance and
operation of a hospital district, shall not
be required to provide that such district
shall assume full responsibility for the
establishment, maintenance, support, or
operation of mental health services or mental
retardation services including the operation
of any community mental health centers,
community mental retardation centers or
community mental health and mental -
tardation centers which may exist or ?e
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Honorable D. C. (Jim) Dozier - Page 3 (JM-1052)
thereafter established within the boundaries
of such district, nor shall the Legislature
be required to provide that such district
shall assume full responsibility of public
health department units and clinics and
related public health activities or services,
and the Legislature shall not be required to
restrict the power of any municipality or
political subdivision to levy taxes or issue
bonds or other obligations or to expend
public moneys for the establishment,
maintenance, support, or operation of mental
health services, mental retardation services,
public health units or clinics or related
public health activities or services or the
operation of such community mental health or
mental retardation centers within the
boundaries of the hospital districts; and
unless a statute creating a hospital district
shall expressly prohibit participation by any
entity other than the hospital district in
the establishment, maintenance, or support of
mental health services, mental retardation
services, public health units or clinics or
related public health activities within or
partly within the boundaries of any hospital
district, any municipality or any other
political subdivision state-supported
entity within the hosp?Eal district may
participate in the establishment, main-
tenance, and support of mental health
services, mental retardation services, public
health units and clinics and related public
health activities and may levy taxes, issue
bonds or other obligations, and expend public
moneys for such purposes as provided by law.
In short, article IX, section 13, created an exception from
the article IX, section 9, prohibition on the expenditure of
funds for medical care by political subdivisions within
a hospital district. We will now turn to your specific
questions.
Your first question is:
What is the definition of the term 'medical
care' as anticipated by article IX, section 9
of the Texas Constitution?
Article IX, section 9, uses the term "medical care" twice.
First, it requires hospital districts to assume full
P. 5473
Honorable D. C. (Jim) Dozier - Page 4 (JM-1052)
responsibility for providing medical care for its needy
inhabitants. Second, it prohibits political subdivisions
within a hospital district from spending funds on medical
care.1
In regard to medical care for the needy, it is the
responsibi~lity of the board of directors of a hospital
district to determine what medical care is to be provided
pursuant to article IX, section 9.2 Attorney General Letter
Opinion M-88-33: B Attorney General Opinions M-1154
(1972) : M-85 (1967): C-334 (1964); see aenerallv Attorney
General Opinions JM-815, JM-746 (1987). Similarly, the
question of whether an expenditure by a political
subdivision within a hospital district is an expenditure for
medical care must be determined on a case-by-case basis.
See aenerally Attorney General Opinions H-1279 (1978)
(county in a hospital district may provide ambulance
service); C-646 (1966) .
Your second question is:
What is the definition of 'public health
units or clinics' as anticipated by article
IX, section 13 of the Texas Constitution?
Again, whether a particular establishment is a public health
unit or clinic within the meaning of article IX, section 13,
of them Texas Constitution is a determination that would have
to be made on a case-by-case basis.
Your third question is:
Does each of those services named in the
above-referenced sections of article IX,
section 13 have to be expressly listed as
being prohibited in the enabling act in order
1. As we pointed out, the obligation placed on hospital
districts, i.e., to assume full responsibility for medical
care for needy inhabitants, is narrower than the prohibition
placed on other political subdivisions within the district
against spending their funds on medical care generally, not
just medical care for indigents.
2. The legislature has authority to determine the
health-care services a hospital district must provide, Tex.
Const. art. IX, § 9A, but to date the legislature has not
exercised that authority.
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Honorable D. C. (Jim) Dozier - Page 5 (JM-1052)
to be prohibited under the terms of article
IX, section 9? Or do the services listed in
article IX, section 13 constitute the
definition of the term 'medical care*?
Certainly, the phrase '. . . public health
units or clinics . . .I anticipates the
providing of some form of medical care.
Apparently you are asking whether a provision in a hospital
district's enabling statute prohibiting a political
subdivision within a hospital district from providing
medical care is sufficient to suspend any authority such a
political subdivision might otherwise have to provide mental
health or mental retardation services or public health units
or clinics. Under article IX, section 9, any political
subdivision within a hospital ,district would be subject to
the general prohibition on the provision of medical care.
Therefore, we think that article IX, section 13, was
intended to reguire‘a more specific prohibition in order to
prohibit political subdivisions within a hospital district
from providing mental health or mental retardation services
or public health services. We conclude therefore that the
enabling statute of a hospital district must specifically
mention mental health and mental retardation services and
public health units and clinics in order to prohibit a
political subdivision within a hospital district from
exercising any authority it might otherwise have to provide
such services. & Attorney General Opinion H-454 (1974).
Your fourth question is:
Referring to those services listed on
attached 'Exhibit Two' and currently being
performed by the Montgomery County Health
Department, which of those services are
prohibited by article IX, section 9 of the
Texas Constitution and the Montgomery County
Enabling Act? Which are allowed by article
IX, section 13, of the Texas Constitution?
The "Exhibit TwoI' you refer to is a description of the
services offered by different divisions of the Montgomery
County Health Department, including several county health
clinics. Some of the services provided by those clinics 'may
constitute "medical care." If, however, those services are
provided by a public health clinic, as they appear to be,
the constitution does not prevent the county from providing
those services. It is the county's responsibility, in the
first instance, to determine whether the services *
question constitute medical care and, if so, whether thi;
are offered by a public health clinic.
P. 5475
Honorable D. C. (Jim) Dozier - Page 6 (JM-1052)
Your fifth question is:
Depending on your definition of 'medical
care,' and your reading of article IX,
section 9 and article IX, section 13 of the
Texas Constitution and the Montgomery County
Enabling Act, is the duty of providing
medical care for needy residents exclusively
imposed on the Montgomery County Hospital
District?
It is clear that the &&y of providing indigent health care
is placed on the hospital district. Neither article IX,
section 13, of the constitution nor the Indigent Health
Care and Treatment Act, article 4438f, V.T.C.S., imposes an
obligation on political subdivisions within a hospital
district to provide indigent health care.
Your 'sixth question is:
If the term 'medical care,' as defined, does
not include those services named in article
IX, section 13, what entity has the d&y to
provide those services since the applicable
portion of article IX, section 13 is clearly
permissive, notwithstanding the mandatory
provisions of article 443613, section 4.09(b).
Your question raises several issues. First, your
question raises the issue of whether mental health and
mental retardation services and services provided by public
health units and clinics constitute "medical care." We do
not think that article IX, section 13, was intended to limit
the definition of "medical care." Rather, it was intended
to allow political subdivisions within a hospital. district
to provide certain services, regardless of whether they
constitute medical care.
YOU also note the provisions of article 4436b,
V.T.C.S., which allow counties and municipalities to create
public health districts. V.T.C.S. art. 4436b, 5 4.01. The
statute also allows a county to establish a.local health
department. s. 5 4.07(a). Once a public health district
or a local health department is created, it & provide the
following public health services:
(1) personal health promotion and main-
tenance services:
(2) infectious disease control and preven-
tion services:
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Honorable D. C. (Jim) Dozier - Page 7 (JM-1052)
(3) environmental and consumer health
programs for enforcement of health and safety
laws related to food, water, water control,
general sanitation, and vector control;
(4) public health education and informa-
tion services:
(5) laboratory services; and
(6) administrative services.
a. 5 4.09. In short, once a county joins a health district
or establishes a local health department, it has a &&Y to
provide certain public health services. Section 4.08(a)(l)
of article 443615 provides:
(1) no individual shall be denied public
health services because of inability to pay
for services, and the municipality, county,
or district shall make provisions for a
reduced fee or no fee for individuals unable
to pay for services in whole or in part.
Your question raises the issue of whether sections 4.08(a)
and 4.09 of article 4436b require a local health department
or health district to provide certain types of medical care
to an indigent who is a resident of a hospital district.
First, because it is the responsibility of a hospital
district to determine what medical care it must provide to
indigents, we cannot resolve the fact question of whether
there is an overlap in the duty placed on a hospital
district to provide medical care for its needy inhabitants
and the duty of a county within the boundaries of a hospital
district that has a duty to provide public health services
under article 4436b. Even if there is an overlap, we do not
think that a county is prohibited from voluntarily assumin
a responsibility that is also borne by a hospital district. 3=
3. Hospital districts, county health departments, and
health districts are not required to seek out indigents and
to provide them with services. Rather, they mu& provide
certain services when those services are sought by
indigents. Therefore, even if there are overlapping respon-
sibilites in the context you ask about, neither political
subdivision is in the position of being unable to fulfill
its duty because another political subdivision has already
done so.
p. 5477
Honorable D. C. (Jim) Dozier - Page 8 (JM-1052)
We note that the Interlocal Cooperation Act, article
4413(32c), V.T.C.S., would permit a county (or a health
district) to contract with a hospital district for the
provision of services that both are obligated or authorized
to provide.
Your seventh question is:
Your paragraph on page 2 of JM-722 states:
When a hospital district is created for
the county pursuant to article IX, section
9, of the Texas Constitution, the county
constitutionally does not have the power
to levy or use taxes to provide for
medical services for indigent residents of
the hospital district, as such power and
obligation rests exclusively on the
hospital district.
Anticipating possible confusion caused by
references to medical services, health care,
medical care, public health clinics and
public health services, is this statement
consistent with your answers to the foregoing
questions?
Attorney General Opinion JM-722 (1987) considered
whether Jackson County was liable under the Indigent Health
Care and Treatment Act, article 4438f, V.T.C.S., for health
care services for indigent. residents of that county.
Article IX, section 13, of the Texas Constitution was not
relevant to that question. Therefore, it was not discussed
in Attorney General Opinion JM-722. Taken out of context,
the paragraph you quote is incomplete inasmuch as it does
not mention that article IX, section 13, of the Texas
Constitution makes exceptions to certain provisions of
article IX, section 9.
SUMMARY
The determination of whether a particular
expenditure is for medical care for purposes
of article IX, section 9, of the Texas Consti-
tution must be made on a case-by-case basis.
Similarly, the determination of whether a
service constitutes mental health or mental
retardation services or public health services
must be made on a case-by-case basis.
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Honorable D. C. (Jim) Dozier - Page 9 (JM-1052)
The enabling statute of a hospital dis-
trict must specifically mention mental health
and mental retardation services and public
health units and clinics in order to prevent
a political subdivision within a hospital
district from exercising any authority it
might otherwise have to provide such services.
Article IX, section 13, of the Texas
Constitution does not impose a duty on any
political subdivision to provide mental health
or mental retardation services or public
health services.
Although we cannot determine whether
there is in fact an overlap, it is possible
that a county that has established a local
health department or has become a member of a
health district and a hospital district have
overlapping responsibilities. There is no
legal impediment to each of two political
subdivisions having a duty to provide the same
services when those services are sought by
indigents.
J’ w
Very truly yo
k,
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCRHARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
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