The Attorney General of Texas
December 18, 1978
JOHN L. HILL
Attorney General
Honorable John J. Kavanagh, M.D. Opinion No. H- 1290
Commissioner
Texas Department of Mental Health Re: Deposit and use of funds
and Mental Retardation received for genetic counseling
P. 0. Box 12668 services.
Austin, Texas 78711
Dear Commissioner Kavanagh:
You have requested our opinion regarding the deposit and use of funds
for genetic counseling services. Section 2.25 of article 5547-202, V.T.C.S.,
authorizes the Texas Department of Mental Health and Mental Retardation
to
charge for genetic counseling services provided under
the authority of this Act at a rate not to exceed the
actual cost of providing such services. The proceeds
from such charges shall be retained and utilized by the
department for the continued provision of such
services.
You state that the Denton State School, a department facility, receives funds
under section 2.25 from community mental health centers, from other
departmental facilities, and from individuals. Genetic counseling services are
generally provided on an outpatient basis. You ask whether section 2.25
empowers the Denton State School to deposit funds received thereunder in a
local depository.
Article 3179, V.T.C.S., applicable to the Denton State School, inter alia,
provides:
AR funds of every character received by or
belonging to the institutions, other than money
appropriated for their support from time to time by
the Legislature, shall as soon as received, be paid over
to the State Treasurer by the Board, superintendent or
other person receiving them. The Treasurer shall
place such sums to the credit of the general revenue
fund.
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Honorable John J. Kavanagh, M.D. - Page 2 (H-1290 1
It might be argued that article 3179, by requiring the deposit of all such funds in the
State Treasury, irreconcilably conflicts with section 2.25 of article 5547-202.
Article 3179, however, applies only to unappropriated funds, and it seems clear that
all moneys collected under section 2.25 are appropriated.
In section 3h of article II of the current appropriations act, Acts 1977, 65th
Leg., ch. 872, at 2804, all proceeds from the operation of out-patient clinics by the
Denton State School are, with a single nonrelevant exception, reappropriated to
that institution:
OUT-PATIENT CLINICS. (11 The State agencies named in
this Section are authorized to charge for treatment and
medication to patients treated on an out-patient basis at
rates not to exceed the actual cost. An additional charge
may be made for medication dispensed to patients at a rate
not to exceed the cost to the State.
(2) Proceeds from the sale of medications and from
treatment are hereby reappropriated to the respective out-
patient clinics or institutions.
(3) As an exception to the General Provisions of this Act
relating to reimbursements and payments, it is expressly
provided that the moneys received by the Department of
Mental Health and Mental Retardation and the Department
of Health Resources, from interagency contracts with the
Department of Public Welfare under Title XIX of the Social
Security Act, are to be considered pay-patient collections
and deposited in the General Revenue Fund.
ln addition, section 26 of article V appropriates to the relevant agency
reimbursements for authorized services received from another state agency:
REIMBURSEMENTS AND PAYMENTS. Any reimburse-
ments received by an agency of the State for authorized
services rendered to any other agency of the State
Government . . . are hereby appropriated to the agency of
the State receiving such reimbursements and payments for
use during the fiscal year in which they are received.
The reimbursements and payments received shall be
credited . . . to the agency’s current appropriation items or
accounts from which the expenditures of like character were
originally made. . . .
Thus, outpatient moneys collected by the Denton State School from
individuals and from community mental health centers are reappropriated to the
agency by section 3h of article II of the appropriations act, while funds received
from other departmental facilities are reappropriated under both that section and
section 26 of article V. As a result, since article 3179 has no application to these
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Honorable John J. Kavanagh, M.D. - Page 3 (H-1290)
particular funds, section 2.25 of article 5547-202 prevails, and the Denton State
School should retain and utilize funds collected for genetic counseling services “for
the continued provision of such services.” By deciding that these funds may be
deposited in a local depository, we need not decide whether they are considered to
be “in the state treasury.”
SUMMARY
The Denton State School is authorized to deposit funds
received for genetic counseling services, pursuant to section
2.25 of article 5547-202, V.T.C.S., in a local depository.
/$i$g~&
cL/y General of Texas
DAVID M-KENDALL, First Assistant
Opinion Committee
jsn
P. 5090