The Attorney General of Texas
.-
March 14, 1983
JIM MATTOX
Attorney General
Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-12
Supreme Court BuildinQ Commissioner
P. 0. Box 12546 Texas Department of Health Re: Whether community mental
Austin. TX. 76711. 2346
1100 West 49th Street health/mental retardation centers
5121475-2501
Telex 9101674.1367 Austin, Texas 78756 are exempt from licensing under
Tel+opier 512/475.0266 article 4442c, V.T.C.S.
Dear Dr. Bernstein:
lM)7 Main St.. Suite 1400
Oaltas. TX. 75201.4709
214/742.6944 You ask the following two questions:
1. Are community mental health and mental
4624 Alberta Ave.. Suite 160 retardation centers exempt from licensing under
El Paso, TX. 79905.2793
article 4442~. V.T.C.S., because they are already
yAm33.3464 being operated within the jurisdiction- of a state
or federal governmental agency?
1L.d Dallas Ave.. Suite 202
Hotiston; TX. 77002.6986
2. If the answer to the first question is yes,
7 131650-0666
which state or federal governmental agency has
jurisdiction over the centers?
806 Broadway. Suite 312
Lubbock. TX. 79401.3479 Your question arises from article 4442c, which provides for the
00617476236 licensing of convalescent and nursing homes by the Department of
Health unless those facilities are exempted by section 2 of that
4309 N. Tenth. Suite B article. A 1981 amendment to article 4442;. V.T,C.S., states in part:
McAllen. TX. 76501.1665
5121662.4547 Sec. 2 (a) ‘Institution’ means sn establish-
ment which furnishes (in single or multiple
facilities) food and shelter to four or more
200 Main Plaza. Suite 400
San Antonio. TX. 76205.2797 persons unrelated to the proprietor, and, in
5121225.4191 addition, provides minor’ treatment under the
direction and supervision of a physician licensed
by the Texas State Board of Medical Examiners, or
An Equal Opportunity/
Affirmative Action Employer
services which meet some need beyond the basic
provision of food, shelter, and laundry. Nothing
in this Act shall apply to:
. . . .
(6) a facility operated within the jurisdic-
tion of a state or federal governmental agency,
p. 49
Dr. Robert Bernstein - Page 2 (JM-12)
including but not limited to the . . . Texas
Department of Mental Health and Mental
Retardation . . . . (Emphasis added).
Acts 1981, 67th Leg., 2364, ch. 604, I1 at 2364. The exemption in
subsection 2(a)(b) is a new provision. YOU state in your letter that
the Department of Health has not licensed community mental health and
mental retardation centers in the past.
The relevant statutes are the mental health statutes, article
3347-201. et seq., V.T.C.S. The Department of Mental Health and
Mental Retardation is established in article 3347-202. Community
centers for mental health and mental retardation services are
established under the authority of article 3347-203. V.T.C.S.. which
provides in section 3.01 that the centers may be operated by counties,
cities, hospital districts, school districts, or any combination
thereof. This apparently places the control of the community centers
with the local government. However, section 3.01A of the article
states that these centers are:
Intended to be vital components in a continuum of
services for the mentally ill and mentally
retarded individuals of this state. (Emphasis
added).
Section 3.13 requires the Department of Mental Health and Mental
Retardation to provide assistance, advice, and consultation to the
community centers, and authorizes the department to transfer ownership
of its personal property to the centers.
Article 3347-204. V.T.C.S., gives the Department of Mental Health
and Mental Retardation the power to provide grants-in-aid to the
community centers upon qualification of the centers. Section 4.01 of
article 3347-204. V.T.C.S., authorizes the department to prescribe
rules necessary to insure adequate provision of services by the
community centers. The board of trustees for each center must submit
to the department a copy of a plan for an effective services program.
V.T.C.S. art. 3347-204, 04.02. A community center is eligible to
receive grants-in-aid if it qualifies according to the rules and
regulations of the department. Id. 04.03. Thus, the department has
considerable authority to regulatehe community centers which receive
grants-in-aid from it.
The Department of Mental Health and Mental Retardation has
submitted a letter describing its method of regulating community
centers:
It is the current practice that each community
center enter Into a performance contract with the
p. 50
Dr. Robert Bernstein - Page 3 (JM-12)
department in order to receive state grant-in-aid
funds. Each performance contract contains
assurances by the community center that it will
_-
adhere to various rules of the commissioner that
affect community centers and allows for access by
the department to all records of the community
center for monitoring purposes.
Although community centers are the creation of a governmental
subdivision, they are in the continuum of state services. In order to
receive grants-in-aid, the centers enter into performance contracts
with.the Department of Mental Health and Mental Retardation to provide
services consistent with the mental health statutes, article 3347-201,
et seq., V.T.C.S. In our opinion. community centers are under the
jurisdiction of the Department of Mental Health and Mental
Retardation, and therefore exempt by section 2(a)(6) of article 4442~.
V.T.C.S., from licensing by the Department of Health.
Our conclusion is consistent with the prior opinions of this
office. Attorney General Opinion C-384 (1966) determined that
community mental health and mental retardation centers are agencies of
the state, and that the Department of Mental Health and’ Mental
Retardation controls the supervision and operation of the centers.
Another opinion of this office concluded that the governor could
transfer from the Department of Health to the Department of Mental
Health and Mental Retardation the responsibilities for administering
and supervising state plans for the construction of menta.1 retardation
facilities. Attorney General Opinion No. C-391 (1966). Attorney
General Opinion M-314 (1968)) in concluding that the Department of
Mental Health and Mental Retardation could not require all community
mental health and mental retardation centers to match grants-in-aid on
a fifty-fifty basis. established that the department could impose
requirements on community health centers, so long as the requirements
were not arbitrary.
Our conclusion is also supported by the legislative history of
section 2(a)(6) of article. 4442~. V.T.C.S. The Senate. Committee on
Human Resources took testimony from a representative of the Department
of Health. Tape of Senate Committee on Human Resources Meeting, April
21, 1981, filed in Senate Staff Services Offices. The witness stated
that the Health Department was at present not licensing certain
facilities operated by the Texas Department of Mental Health and
Mental Retardation. The purpose of the amendment was not to change
the existing practice, but merely to codify.it.
It is our conclusion that community mental health and mental
retardation centers established pursuant to article 3347-203,
p. 31
,-
Dr. Robert Bernstein - Psge 4 (JM-12)
?
V.T.C.S., are exempt from licensing by the Department of Health under
article 4442, V.T.C.S.
.-
SUMMARY
Community centers for mental health and mental
retardation, as established in article 3347-203.
V.T.C.S., are exempt from licensing under article
4442c, V.T.C.S., because the centers are under the
jurisdiction of the Department of Mental Health
and Mental Retardation.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
,-.
Executive Assistant Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED: ‘4
OPINION COMMITTEE :
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p. 52