Untitled Texas Attorney General Opinion

The Attorney General of Texas JIM MAlTOX Narember 13. 1985 Attorney General Supreme Court Building Gary E. Miller, M.D. Opinion No. JU-378 P. 0. Box 12546 Colluaissioner Austin. TX. 78711- 2546 Texas Department of Mental Realth Re: Whether funds paid to 5121475-2501 and Mental Retar'dation a Mental Eealth and Mental Telex 9101674.1367 P. 0. Box 12668 Retardation facility for Telecooier 51214750266 Austin, Texas 78711 services rendered pursuant to a contract are appro- 714 Jackson. Suits 700 priated to that facility Dallas. TX. 75202.4506 2141742.6944 Dear Dr. Miller: 4624 Alberta Ave., Suite 160 You inquire about the proper disposition of funds received by the El Paso. TX. 799052793 Texas Department elfMental Realth and Mental Retardation [hereinafter 915/5333464 -1 under a wntract with a private entity. You provide the following background information about the contract: 1001 Texas, Suite 700 Houston, TX. 77002-3111 State schools for the mentally retarded . . . have 7131223.5686 an oppol:tunityto assist private, not for profit service providers in the delivery of community- based residential services through the use of 806 Broadway, Suite 312 Lubbock, TX. 79401-3479 state anployees to operate or partially operate 8061747.5238 such services on a contract basis. The private, not for profit service provider could qualify for ICF-MR 1:srtification [intermediate care facility 4309 N. Tenth. Suite B for the mentally retarded; see 42 U.S.C. McAllen. TX. 76501-1665 51216824547 11396d(c), cd)] and thereby become eligible to receive reimbursement for such services from the Federal Government through the Texas Department of 200 Main Plaza. Suite 400 Human Resources. The private, not for profit San Antonio, TX. 762052797 service provider would, in turn, pay the state 5121225.4191 school rll or part of such funds as consideration for the :servicesof the school's employees under An Equal Opportunityi the provisions of the contract. Affirmative Action Employer You state that the contract will be made under authority of section 2.13, article 5547-202, which provides as follows: Sec. 2.13. The Department may cooperate, negotiate and contract with local agencies, hospitals, private organizations and foundations, communilg centers, physicians and persons to plan, p. 1726 Dr. Gary E. ~liller- Page 2 (JM-378) develop and provide community-based mental health and mental retardation services. You do not ask whc:thersection 2.13 authorizes such a contract, and if it does, vhether it could constitutionally do so. -See Tex. Comet. art. III, S51. !!tmask the folloving question: Are funds received by a Texas Department of Mental Health and Mental Retardation operated facility as consideration :for services rendered to a private, not for profit entity pursuant to contract re- appropriated t,o the facility which provided such services? (Emphasis added). You cite the follwing rider to the Appropriations Act as being relevant to your questim: Sec. 27. RRIHBDRSEMENTS AND PAYMENTS. Any reimbursements received by an agency of the state for authorixd services rendered to any other agency of thtz state government, and any private sources and aa:{payments to an agency of the state save-nt male in settlement of a claim for are hereby appropriated to the agency of damages, -- the State rrwiving such reimbursements and pay- ments for useliuring the fiscal year in which they are received. The reimbc.rsementsand payments received shall be credited by the comptroller to the agency's current appropriation items or accounts from which the expenditures of like character were originally made, or in the case of damage settlements to the appropriation,items or accounts from which repairs or replacemerltsare made; provided, however, that any refund oi'less than fifty dollars ($50) to an institution c'f higher education for postage, telephone se.nrice,returned books and materials, cylinder ar.d container deposits, insurance premium and like items, shall be deposited to the current fund account of the institution in the State Treamry and such funds are hereby re- appropriated. Acts 1985, 69th Leg., cb. 980, art. V. 527, at 7779. The payments uni,er the proposed contract are payments from private sources subject. to the above Appropriations Act provision. The State Funds Reform Act provides that: p. 1727 Dr. Gary E. Miller - Page 3 (JM-378) Fees, fines, pcualties, taxes, charges, gifts, grants, donations, and other funds collected ot received by a s'tate agency under law shall be deposited in the treasury, credited to a special fund or funds, sad subject to appropriation on19 for the purposes for which they are otherwise authorized to be expended or disbursed. A deposit shall be made at the earliest possible time that the treasury cat accept those funds, but not later than the seventh day after the date of receipt. V.T.C.S. art. 4393-1, 54.(1(,4(a)(former V.T.C.S. art. 4393c reenacted as part of Treasury Act, Acts 1985, 69th Leg., ch. 240. at 2078, 2104). The funds are to be deposited to the credit of the General Revenue Fund unless the mco,eyis expressly required to be deposited to another fund or account. Id. 54.004(b). The Texas Department of Mental Health and Mental !%etardationis a state agency subject to the State Funds Reform Act. See Attorney General Opinion MW-454 (1982). Funds the department res:zes under the contract are subject to article 4393-1, V.T.C.S., a,ndmust be deposited in the treasury within seven days after the date c'freceipt. Rider 27, quoted above, appropriates the payments received by MIIMR under contract for use during the fiscal year received. The funds are credited to the agency's appropriation items or accounts "from which the expendimres of like character were originally made. . . .'I The funds received under the proposed contract will constitute reimbursement for services of employees of state schools for the mentally retarded. The rider appropriates these payments to the items of appropriation or accounts from which the employees ware paid. The current General Appropriations Act includes the following items in the appropriation to the Texas Department of Mental Realth and Mental Retardation: STATE SCEOO1.SFOR TRE MRNTALLY RETARDED For the Years &ding August 31, August 31, 1986 1987 1. Administration Program: [amounts of appro- a. Superinte:ldent(plus priation items house ,andutilities) deleted] b. Other Administrative and Stn:EfDevelopment Servic2:3 2. Auxiliary Seru:LcesProgram p. 1728 Dr. Gary E. Miller - Pa:ce4 (JM-378) 3. Residential !ServlcesProgram 4. Utilities (non-transferable) 5. Community-Based Residential Service Program 6. Non-Residential Treatment. Education and Rehabilitation Services Program GRAND TOTAL, STATE SCHOOLS $246,318,003 $246,318,003 . . . . It is the i:n:entof the Legislature that the above appropriated fmds be allocated and expended as nearly as practicable by the facilities enumerated below in the amounts spczified for each facility. Abilene State !Ichool [specific amount Austin State School allocated each Brenham State Ikhool school deleted] Corpus Christi State School Denton State School Fort Worth State School Lubbock State licbool Lufkin State S~:bool Mexla State School Richmond State School San Angelo Sta:e School San Antonio Stite School Travis State S~:hool TOTAL $246.318.003 $246.318.003 Acts 1985, 69th Leg., c!a.980, at 7536-37. The legislature appropriated funds to the state schools as a group for the various programs and purposes numbered 1 through 6, and it also stated the apprmimate amount of the total appropriation to go to each school. The items numbered 1 through 6 are the items of appropriation vhich f'und the state schools, including salaries of their employees. Art Lcle V, section 27 appropriates funds received under the proposed contract to the appropriation item from which derive the salaries of employees performing services under the contract. -See Tcx. Coast. art. VIII, $6. Therefore. funds received p. 1729 Dr. Gary E. Miller - Page 5 (JM-378) under such contracts are appropriated to the Department of Mental Realth and Mental Retardation for the programs of the state schools described in the Appropriations Act. The rider does not appropriate these receipts to the state Ischoolwhose employees generated the=. SUMMARY The State Funds Reform Act, article 4393-1, V.T.C.S., applies to funds received by the Texas Department of Ment,alEealth and Kental Retardation from a private source. These funds must be placed in the treasury. Article V. section 27 of the General Approprjstions Act appropriates those funds to the department's appropriation items from vhich the state'flexpenditures under the contract were made. J-A/b Very truly yours . - JIM MATTOX Attorney General of Texas MARY KELLER Executive Assistant Attorney General ROBERT GRAY Special Assistant Attorney G,eneral RICK GILPIN Chairman, Opinion Committer! Prepared by Susan L. Garriwm Assistant Attorney General APPROVED: OPIHICN COmITl'EE Rick Gilpin, Chairman Colin Carl Susan Garrison Tony Gulllory Jim noellinger Jennifer Riggs Nancy Sutton Sarah Woelk Bruce Youngblood p. 1730