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The Attorney General of Texas
July 30, 1979
MARK WHITE
Attorney General
Honorable John J. Kavanagh, M.D. Opinion No. Mw-35
Commissioner
Texas Department of Mental Health Re: Authority of Texas Depart-
and Mental Retardation ment of Mental Health and Mental
P. 0. Box 12668, Capitol Station Retardation to license private
Austin, Texas 787R mental hospitals.
Dear Dr. Kavanagh:
The Texas. Department of Mental Health and Mental Retardation is
responsible for licensing private mental hospitals fin the. State of Texas.
V.T.C.S. art. 5547-88 7 554739. No person or political sub-division may
operate a mental hospital unless licensed by the department. V.T.C.S. art.
5547-88. You inform us that the department has in the past licensed only
facilities which fit the traditional concept of a private mental hospital.
Your rules for licensing reflect thii practice, since they require a physical
plant, services, and staffing similar to those of a general hospital. See e
rules 302.03.02.006 (physical plant); 302.03.02.009 (pharmacy or drug-3 room ;
302,.03.02.Oll (access to clinical pathology services); 302.03.02.012
(availability of. blood bank); 302.03.02.017 (clinical psychological services);
302.03.02.021 (medical staff); 302.03.02.027 (nursing staff). You ask whether
you have authority to license as a private mental hospital a psychiatric
program which has no building in which patients reside. You mention as an
example a treatment facility which operates in a camp setting consisting of
tents and some community buildings.
The Mental Health Code, V.T.C.S. arts. 5547-l through 5547-300,
provides in section 5547-2:
It is the purpose of thii Code to provide humane
care and treatment for, the mentally ill and to
facilitate their hospitalization, enabling them to
obtain needed care, treatment and rehabilitation. . . .
A “mental hospital” is defined as “a hospital operated for the primary
purpose of providing in-patient care and treatment for the mentally ill.”
V.T.C.S. art. 5547-4(g). The department has broad authority to prescribe
rules, regulations and standards necessary “to insure proper care and
P- 103
Honorable John J. Kavanagh, M.D. - Page Two (NW-35)
treatment of patients in private mental hospitals.” V.T.C.S. art. 5547-95. It may license
a private mental hospital only if it “finds that the premises are suitable and that the
applicant is qualified to operate a mental hospital in accordance with the requirements
and standards established by law and by the Department. . . .” V.T.C.S. art. 5547-91(a).
The statute does not establish specific requirements for the physical plant of a
private mental hospital. Compare V.T.C.S. art. 4437f, SS2(b), (b)(l) (facilities required of
general hospital and special hospital). The department, as the agency in charge of
enforcing the statute, ~has considerable discretion to fill in the details of its provisions
See Texas State Board of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex. 1967).
The rules it promulgates must of course be in harmony with the general objectives of the
statute, see Gerst v. Oak Cliff Savings & Loan A&n, 432 S.W.2d 702 (Tex. 1968), but those
objectivezelate to providing proper care and treatment and “suitable” premises, rather
than a particular kind of physical plant. The department’s standards for the care and
treatment of mental patients relate to services, personnel, procedure% equipment,
medication and record keeping as well as to physical facilities
If a particular institution does not operate in a traditional hospital building but,
fulfills all other requirements for a private mental hospital, and if its premises are
suitable for the proper care and treatment of mental patients, the department would in
our opinion have authority to license it. An administrative agency must of course exercise
its power reasonably, see Fire Department of City of Fort Worth v. City of Fort Worth,
217 S.W.2d ~664 (Tex.T49), but we cannot say that an order licensing a residential
treatment program as a privates mental hospital would .be unreasonable or an abuse of
discretion merely because the patients did not reside in a traditional hospital building.
The department’s rules at present require a hospital building. If it determines to license a
nontraditional facility, the department would have to promulgate additional standards for I’
“suitable” premises which would encompass a nontraditional setting.
SUMMARY
The Department of Mental Health and Mental Retardaticn has
authority to license as a private mental hospital a residential
treatment program which does not operate in a traditional hospital
building if it complies with departmental standards for suitable
premises and for the proper care and treatment of mental patients.
MARK WHITE
Attorney, General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
p. 104
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Honorable John J. Kavanagh, M.D. - Page Three (Mw-35)
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Martha Allen
David B. Brooks
Carla Cox
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 105