r             THE     .~.TTOIRNEV        GENERAL
                           OFTEXAS
                        AUSTIN,TEXAR    78711




    The Honorable Kenneth D. Gaver      Opinion No. H-865
    Commissioner
    Texas Department of Mental Health   Re: Authority of Depart-
         and Mental Retardation         ment of MH/MR to operate
    P. 0. Box 12668, Capitol Station    residential programs for
    Austin, Texas 78711                 the mentallv retarded in
                                        San Antonio; and related
                                        questions.

    Dear Dr. Gaver:

          You have asked several questions regarding the authority
    of .the
        .   Austin State School to contract with other state insti-
    tutions or agencies for mental retardation
                                        .        residential services
    in San Antonio.   The central questions are:
P
              1. Can the Austin State School use its
              appropriations to lease appropriate
              building facilities in San Antonio,
              Texas, from the Texas Department of
              Health Resources and to operate resi-
              dential programs for the mentally
              retarded in such facilities?

              2.  Can the Austin State School contract
              with the San Antonio State Hospital
              whereby the school will pay the hospital
              to provide in the City of San Antonio a
              residential program for mentally retarded
              persons?

              3. Can the Austin State School contract
              with the Texas Department of Mental Health
              and Mental Retardation acting for and on
              behalf of the San Antonio State School
              whereby the Austin State School will pay
              the San Antonio State School to provide
              a residential program in the City of San
              Antonio for mentally retarded persons?



                              p.3646
The Honorable Kenneth D. Gaver - page 2 (M-865)



     The Texas Department of Mental Health and Mental
Retardation is composed of the Texas Board of Mental Health
and Mental Retardation, the Commissioner, Deputy Commissioner,
and staff, and the facilities and institutions by law made a
part of the Department. V.T.C.S. art. 5547-202, 5 2.01.

     The San Antonio State Hospital and the San Antonio
State School, as well as the Austin State School, are insti-
tutions which are by law made a part of the Department.
V.T.C.S. art. 5547-202, 9 2.01; art. 3185(d); art. 3263g.
The San Antonio State School was created in 1975 by article
3263g, V.T.C.S., but no funds have ever been specifically
appropriated by the Legislature for its operation.  Funds
have been appropriated to operate the San Antonio State
Hospital and the "Austin State School and Branch" for the
1976-1977 biennium. Acts 1975, 64th Leg., ch. 743, at 2473,
2476. The phrase, "and Branch" in the Austin State School
appropriation apparently refers to the Austin State School
Annex, located in Austin. V.T.C.S. art. 5547-202, 6 2.01;
art. 387133, § 12.

     A pertinent provision of the 1975 General Appropri-
ations Act, specially applicable to the Department of Mental
Health and Mental Retardation, specifies:

          NEW OR ADDITIONAL INSTITUTIONS. No money
          appropriated by this Article may be spent
          for constructing new or additional insti-
          tutions, or for the purchase of sites
          therefor. without svecific authorization
          of the Legislature.‘ All institutions
          shall be kept where they locatedb
                                     are
          the Leqslature,    and all new buildings
          Kbe    constructed shall be on these sites
          unless otherwise specifically authorized
          by the Legislature.    For the purpose of
          this Subsection, specific authorization
          may be granted either by basic statute
          or special authorization in this Act.
          Acts 1975, 64th Leg., ch. 743, at 2516.
           (Emphasis added).




                         p.3647
.




    The Honorable Kenneth D. Gaver - page 3 (H-865)



         A fair reading of the Appropriations Act restriction on
    the use of money for new or additional MH/MR institutions
    convincingly demonstrates that the Legislature intended to
    prohibit the Austin State School from using its appropriated
    money for the purpose of establishing itself at a new or
    different site. The word "purchase," when used in a statute
    designed to prevent certain results, can include any trans-
    action lending itself to the accomplishment of what the
    statute is designed to prevent. Blau v. Lehman, 286 F.2d
    786, 792 (2d Cir. 1960), aff'd 368 U.S. 403 (1962). See
    ~~~~~5~:2~2~3~;S;3875(~:~:2~;p.~7~~lf~~             57
    Webb, 64 S.W. 792 (Tex. Civ. App. 1901, writ ref'd).

         The Legislature appropriated money for MH/MR contract
    treatment services rendered by community centers and provided
    money for state grants-in-aid to such centers, as authorized
    by articles 5547-203 and 5547-204, V.T.C.S. Acts 1975, 64th
    Leg., ch. 743, at 2463. However, we believe it did prohibit
    the use of any appropriated funds for the establishment of
    new or additional sites for the Austin State School. We
    therefore answer the three questions above in the negative,
    and your other questions, contingent upon affirmative answers
    to one or more of the central questions, are not reached.

                           SUMMARY

              The Austin State School may not use funds
              appropriated to it by the 1975 General
              Appropriations Act to lease or otherwise
              acquire facilities in San Antonio for the
              operation of residential services programs
              for mentally retarded persons in Bexar
              County.

                                ,-Very truly yours,




                                     Attorney General of Texas




                             p.3648
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The Honorable Kenneth D. Gaver - page 4 (H-865)




APPROVED:




Opinion Committee

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