The Honorable Melvin Rowland Opinion No. H-835
Chairman
Texas Health Facilities Re: Whether a Veterans
Commission Adminfstration Hospital
314 Highland Mall Blvd. is required,to obtain a
Austin, Texas 70752 certificate of need or
exemption certificate
from the.Texas Health
Facilities Cemmispion..
Dear Mr. Rowland:
You have requested our opinion regarding whether the
Veterans Administration must obtain a certificate of need
or an exemption certificate from the Texas Health Facilities
Commission, pursuant to article 4418h, V.T.C.S., before it
may construct a hospi.tal. Article 4418h provides, in
section 3.01:
Each person must obtain from the
commission a certificate of need or an
exemption certificate in accordance with
this Act for a proposed project to:
(1) substantially expand a service
currently offered or provide a service
not currently offered by the facility;
(2) construct a new facility or
change the bed capacity of an existing
facilityt
(3) modify an existing facility:
(4) convert a structure into a
health-care facility: or
(5) organize an HMO which requires
a new or modified facility. (Emphasis
added).
p. 3522
. -
The Honorable Melvin Rowland - page 2 (H-835)
"Person" is defined in section 1.03(14) as
an individual, sole proprietorship, charity,
trust, estate, institution, group, association,
firm, joint venture, partnership, joint stock
company, cooperative, corporation, the state
or a political subdivision or instrumentality
sentative or any &her legal entity. (Emphasis
added).
The Veterans~Administration is without question an
"instrumentality of the federal government." It is clear,
however, that
[t]he United States may perform its
functions without conforming to the police
regulations of a state. Arizona L Calif-
ornia, 283 U.S. 423, 451 (1931).
One of the "functions" of the Veterans Administration is to
"provide hospitals." 39 U.S.C. s 5001.
In Arizona v. California, the United States Supreme
Court hem,?f Congress had the power to authorize the
construction of Boulder Dam, the Secretary of the Interior
had no obligation to submit the plans and specifications to
the state engineer for approval, as required by state law.
su ra at 151-52. See also Leslie Miller, Inc. v. State
Akansas 352 U~~(~Innn~r~s,. v.
slk Contra; Commission of Penns
ec ark that y lvania, 318 U.S. 261 (19431,
theSupreme Court d 1
in the absence of Congressional consent,
there is an implied constitutional immunity
of the national government from state
taxation, and from state regulation of the
performance, by federal officers and agencies,
of governmental functions. -Id. at 269.
p. 3523
. .
The Honorable Melvin Rowland - page 3 (H-835)
A federal statute relating to the Veterans Administra-
tion could be construed to provide such consent. The
statute provides:
The Administrator, on behalf of the United
States, may relinquish to the 'State in ;,
which any lands or interests therein under
his supervision or control are situated,
such measure of legislative jurisdiction
over such lands or interests as is neces-
sary to establish concurrent jurisdiction
between the Federal Government and the
State concerned. Such partial relinquish-
ment of legislative jurisdiction shall be
initiated by filing a notice thereof with
the Governor of the State concerned, or
in such other manner as may be prescribed
by the laws of such State, and shall take
effect upon acceptance by such State.
38 U.S.C. s 5007.
We have been advised by the Office of the Governor, however,
that the Administrator of the Veterans Administration has not
filed any such notice to relinquish legislative jurisdiction.
As a result, we must conclude that the State of Texas is
without authority to require the Veterans Administration to
obtain a certificate of need or an exemption certificate from
the Texas Health Facilities Commission before it may construct
a hospital.
SUMMARY
The State of Texas is without authority
to require the Veterans Administration
to obtain a certificate of need or an
exemption certificate from the Texas
Health Facilities Commission before it
may construct a hospital.
Attorney General of Texas
p. 3524
The Honorable Melvin Rowland - page 4 (H-835)
APPROVED:
Opinion Committee
jwb
p. 3525