OP TEXAS
AURTIN. TEXAS 78711
November 2, 1973
The Honorable James Peavy, hi, D. Opinion No. H- 143
Commissioner of Health
Texas State Department of HeaAth Re: The constitutionality of
‘Austin, Texas 78756 State participation in a
: federal supplemental food
program for pregnant and
lactating women, infants
Dear Dr. Peavy: and children.
You have asked us for an opinion concerning the authority of
the Texas State Department of Health to receive and distribute federal
funds pursuant to the Child Nutrition Act (42 USC 137; et seq. ) as
amended by Public Law 92-433, for the purpose of providing a special
supplemental food program for women, infants and children in this
State.
You advise us that:
“The Comptroller of Public Accounts has ques,tioned
whether or not the disbursement of the funds herein
described would violate Sections 50 and 51 of Article
3 of the Constitution of the State of Texas. Therefore,
the following question is ‘submitted for your consideration.
“In the event that federal funds are made available
to this Agency, may these funds be lawfully expended
for the purposes herein described?”
The United States Department of Agriculture Regulations governing
the disbursement and use of these funds (See 38 Federal Register 18447-
18451) show that basically this program is designed to distribute nutri-
tional food to pregnant or lactating women, and to children under age 4
who live in low income areas and are part of low income groups considered
to be “at nutritional risk”. It is also a mijor object of the program to
collect and evaluate medical data which will medically identify benefits
of such a food program.
p. 677
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The Honorable James Peavy, M. D., page 2 (H-143)
The requirements for eligibility of local agencies are that the
agency provide health service to residents of an area. in which a
substantial proportion of the persons have low incomes; that is,serve
a population of women, infants or children which is “at nutritional
risk”; that its staff include competent professionala; that it.have
personnel and expertise and equipment necessary for performing the
tests; and that it maintain adequate medical records.
It is our understanding that this program will be financ ed entirely
with federal funds which will be deposited in the State Treasury fo
be disbursed in accordance with your directions and in accordance
with the above referenced regulations. No matching State fund,s are
involved. Your authority to participate in this program emanates
from Article 4418f, V. T. C. S. , which provides: “It shall be lawful
for the State Department of Health to accept donationa andcontributions,
to be expended in the interest of the public healthand the enforcement
of public health laws. ”
The appropriation of the money received is covered by 5 19, Article 5,
House Bill 139, Regular Session, 63rd Legislature (T,he Appropriations
Act for fiscal 1974 and 1975) which generally provides that State agencies
rece’iving federal funds shall use said funds for the purposes intended.
Compare Attorney General Opinion C-530 (1965).
You advise us that the Comptroller assigns his reluctance to $ $ 50
and 51 of Article 3 of the Texas Constitution. Section 50 prohibits the
giving or lending of the credit of the State for private purposes. We do
not think it is controlling since the credit of the State is not being given
or loaned in connection with this program.
Section 51 provides, “The Legislature shall have no power to make
any grant or authorize the making of any grant of public moneys to any
individual, association of individuals, municipal or other corporations
whatsoever. ”
It is well settled that this prohibition does not apply to the use of
public funds for public purposes. State v. City of Austin, 331 S. W. 2d 737
(Tex. 1960). Compare Attorney General Opinions C-464 (1965) and M-274
(1968).
p. 678
The Honorable James Peavy, page 3 (H-143)
It seems clear to us that a food program of this type for indigent
and needy children and pregnant and lactating women, together with
the compilation of relevant data as to the results of this prog~ram,
constitutes a public purpose. See Attorney General Opinion No. C-584
(1966) in which this office held that 5 51 of Article 3 would not prohibit
the use of federal and matching State funds for the establishment of
community centers to provide free health services to indigent persons.
Accordingly, the answer to your question is that, in the event
federal funds ares made available to your department pursuant to the
Child Nutrition Act of 1966 as amended, for the purposes discussed
hereinabove, such funds may be lawfully expended for those purposes.
SUMMARY
The use of federal funds deposited in the State
Treasury for expenditure at the election of the State
Health Department under the Federal Child Nutrition
Act of 1966, as amended, for the purpose of providing
a supplemental food program for pregnant and lactating
women, infants and children, is not prohibited by any
provision of the Texas Constitution.
Very truly yours,
Attorney General of Texas
VED:
DAVID M. KENDALL, Chairman
Opinion Committee
p. 679