Hon. Grady Hazlewood, Chairman
Senate Finance Committee
Austin, Texas
Opinion No. C- 38
Re: Assuming no change In exist-
ing law, whether the Legls-
lature has the authority to
make an appropriation to the
Board for Texas State Hospi-
tals and Special Schools
for the stated purposes and
Dear Senator Hazlewood: under the stated facts.
You have requested the opinion of this office as to
whether, assuming no change in existing law, the Legislature
has the authority to make an appropriation to the Board for
Texas State Hospitals and Special Schools, or to its indivi-
dual institutions, from which funds could be paid the neces-
sary travel expenses of its employees and of patients, incur-
red where such patients are returning to a State Tuberculosis
Hospital after having left against medical advice, while in an
infectious stage of the disease.
Your request Is speclfically~concerned with patients
who voluntarily sought Initial admission to a State Tubercu-
losis Hospital, who left such State Hospital against medical
advice rather than by discharge, who are returned to such
State Hospital for further treatment without a quarantine order,
and who are residents of Texas.
With regard to the question of the authority of then
Board for Texas State Hospitals and Special Schools and its
Individual instftutions to'hold the patients admitted to Its
care without their consent, regardless of their mode of
original admittance, this office has previously issued At-
torney General's Opinion No. w-896 (1960). The holding of
this opinion is reaffirmed and the following is quoted there-
from:
"It is our opinion that the provisions
of the Act to fight and control the disease
Hon. Grady Hazlewood, page 2 (c-38)
of tuberculosis are clear. While the Tubercu-
losis Code provides a method for voluntary
admission by persons in a contagious condition
with this disease to State hospitals, this
does not mean that such persons remain in'these
tubercular hospitals as guests and free to
leave at their discretion. It is our opinion
that the mode of admission to such hospitals Is
only ancillary, for only one class of persons
are eligible to gain admittance and they~are
those who have tuberculosis In an active, con-
tagious and communicable state and who cannot
be treated safely In the community from which
they come. Once these persons are admitted
either voluntarily or Involuntarily, ,yourBoard
Is charged with the.duty and the responsibility
of caring for such persons until such time as
they can be pronounced free from this contagious
disease."
It can thus be seen that once a patient is admitted
under the Texas Tuberculosis Code (Article 4477-11, V.C;S.) and
remains In an active, contagious and communicable states,it Is
the duty of the Board and its Individual hospitals to restrain
such persons as securely as possible. In Section 4 of this Code,
we find the following statement by the Legislature:
"Tuberculosis in a contagious, lnfec-
tious, or communicable state Is hereby de-
clared to be dangerous to public health."
Section 51 of Article III of the Constitution of Texas
forbids the Legislature to give or grant any public moneys to
any person, It would appear that this section of the Constl-
tution would forbid the appropriation of money to pay travel
expenses of patients returning to a State Hospital after hav-
ing departed therefrom voluntarily. The legislative intent
and statement of public pollcy~contained In the Texas Tubercu-
losis Code clearly reveals, however, that tuberculosis Is con-
sidered to be a serious danger to public health. The Board
has, in the final analysis, no choice with respect to obtain-
ing the prompt return of such persons to the proper'institution.
This is a matter that vitally affects public health, and the
expenditure is for a purely governmental purpose, giving public
money to an individual only as a mere Incident to the paramount.
public pur ose behind the expenditure. State v. City of Austin,
160 Tex. 3E8, 331 S.W.2d 737 (1960).
-160-
. -
Hon. Grady Hazlewood, page 3 (C-9 )
It Is thus the,oplnlon of this office that an appro-
priation to provide funds for the travel expense8 of Board
employees and of patlenta, ln&arred where such patients are
retiu?ned to a State Tuberouloels Hoapltal after .havlng left
agalns~‘meaioal advioe, while in an Infectious &age of the
dlaea88,~ 18, proper. Such appropriation $a for the purpose
of proteotlhg the public against the .dangere of a eerlouely
‘lnfeotloua’ dlee&ae,~and It oannot be eald that the expendl-
ture La one that provides an unoonetltutloqal benefit to a
private @arson.
SUMMARY
Under existing law, the Legislature haa
the authority to make an appropriation to
the Board for Texas State HospltaLs and
Special $chools or Its individual lnstltu-
tlons, from which fMde oould,be paid. the
neoeasary travel expenses of lte employee6
and of patients, incurred where auoh pa-
tients are returned. to ‘a State Tubercu-’
loels Hospital after having left against
medical advice while In en knfeotlous &a&e
of then disease.,
Such an appropriation does, not ,vlolate the
oonstltutlonal.prohlbltlon against .the~pay-
ment of State funds to private lndlvlduals,
oontalned in Seotlon 51, Artlole III, for the
reason that such travel expenses are ln fur-
therance of a program neoeaeary to the publio
health and welfare.
Pours iverytruly,
WAGGONER CAM
Attornes General
Hon. Grady Hazlewood, page 4 (C-38 )
APPROVED:
OPINION COWTTEE
W. V. Geppert, Chairman
Paul Phy
Arthur Sandlln
J. C. Davis
APPROVED FOR TEE A'LTCRNEFGEXEXAL
By: Stanton Stone
-162-