r THE .~.TTOIRNEV GENERAL
OFTEXAS
AUSTIN,TEXAR 78711
The Honorable Kenneth D. Gaver Opinion No. H-865
Commissioner
Texas Department of Mental Health Re: Authority of Depart-
and Mental Retardation ment of MH/MR to operate
P. 0. Box 12668, Capitol Station residential programs for
Austin, Texas 78711 the mentallv retarded in
San Antonio; and related
questions.
Dear Dr. Gaver:
You have asked several questions regarding the authority
of .the
. Austin State School to contract with other state insti-
tutions or agencies for mental retardation
. residential services
in San Antonio. The central questions are:
P
1. Can the Austin State School use its
appropriations to lease appropriate
building facilities in San Antonio,
Texas, from the Texas Department of
Health Resources and to operate resi-
dential programs for the mentally
retarded in such facilities?
2. Can the Austin State School contract
with the San Antonio State Hospital
whereby the school will pay the hospital
to provide in the City of San Antonio a
residential program for mentally retarded
persons?
3. Can the Austin State School contract
with the Texas Department of Mental Health
and Mental Retardation acting for and on
behalf of the San Antonio State School
whereby the Austin State School will pay
the San Antonio State School to provide
a residential program in the City of San
Antonio for mentally retarded persons?
p.3646
The Honorable Kenneth D. Gaver - page 2 (M-865)
The Texas Department of Mental Health and Mental
Retardation is composed of the Texas Board of Mental Health
and Mental Retardation, the Commissioner, Deputy Commissioner,
and staff, and the facilities and institutions by law made a
part of the Department. V.T.C.S. art. 5547-202, 5 2.01.
The San Antonio State Hospital and the San Antonio
State School, as well as the Austin State School, are insti-
tutions which are by law made a part of the Department.
V.T.C.S. art. 5547-202, 9 2.01; art. 3185(d); art. 3263g.
The San Antonio State School was created in 1975 by article
3263g, V.T.C.S., but no funds have ever been specifically
appropriated by the Legislature for its operation. Funds
have been appropriated to operate the San Antonio State
Hospital and the "Austin State School and Branch" for the
1976-1977 biennium. Acts 1975, 64th Leg., ch. 743, at 2473,
2476. The phrase, "and Branch" in the Austin State School
appropriation apparently refers to the Austin State School
Annex, located in Austin. V.T.C.S. art. 5547-202, 6 2.01;
art. 387133, § 12.
A pertinent provision of the 1975 General Appropri-
ations Act, specially applicable to the Department of Mental
Health and Mental Retardation, specifies:
NEW OR ADDITIONAL INSTITUTIONS. No money
appropriated by this Article may be spent
for constructing new or additional insti-
tutions, or for the purchase of sites
therefor. without svecific authorization
of the Legislature.‘ All institutions
shall be kept where they locatedb
are
the Leqslature, and all new buildings
Kbe constructed shall be on these sites
unless otherwise specifically authorized
by the Legislature. For the purpose of
this Subsection, specific authorization
may be granted either by basic statute
or special authorization in this Act.
Acts 1975, 64th Leg., ch. 743, at 2516.
(Emphasis added).
p.3647
.
The Honorable Kenneth D. Gaver - page 3 (H-865)
A fair reading of the Appropriations Act restriction on
the use of money for new or additional MH/MR institutions
convincingly demonstrates that the Legislature intended to
prohibit the Austin State School from using its appropriated
money for the purpose of establishing itself at a new or
different site. The word "purchase," when used in a statute
designed to prevent certain results, can include any trans-
action lending itself to the accomplishment of what the
statute is designed to prevent. Blau v. Lehman, 286 F.2d
786, 792 (2d Cir. 1960), aff'd 368 U.S. 403 (1962). See
~~~~~5~:2~2~3~;S;3875(~:~:2~;p.~7~~lf~~ 57
Webb, 64 S.W. 792 (Tex. Civ. App. 1901, writ ref'd).
The Legislature appropriated money for MH/MR contract
treatment services rendered by community centers and provided
money for state grants-in-aid to such centers, as authorized
by articles 5547-203 and 5547-204, V.T.C.S. Acts 1975, 64th
Leg., ch. 743, at 2463. However, we believe it did prohibit
the use of any appropriated funds for the establishment of
new or additional sites for the Austin State School. We
therefore answer the three questions above in the negative,
and your other questions, contingent upon affirmative answers
to one or more of the central questions, are not reached.
SUMMARY
The Austin State School may not use funds
appropriated to it by the 1975 General
Appropriations Act to lease or otherwise
acquire facilities in San Antonio for the
operation of residential services programs
for mentally retarded persons in Bexar
County.
,-Very truly yours,
Attorney General of Texas
p.3648
. .
.
The Honorable Kenneth D. Gaver - page 4 (H-865)
APPROVED:
Opinion Committee
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P.3649