             THE    ATTORNEY         GENERAL
                        OF TEXAS


                           June 2, 1989




Honorable D. C. (Jim) Dozier      Opinion No.    JM-1052
Montgomery County Attorney
Courthouse                        Re:   Responsibilities of the
Conroe, Texas 77301               Montgomery  County    Hospital
                                  District with regard to indi-
                                  gent health care   (RQ-1625)

Dear Mr. Dozier:

    You ask a number of questions about article IX, sections
9 and 13, of the Texas Constitution.  Because your questions
require a careful reading of the two constitutional     pro-
visions you  ask about,  we will  discuss the  language  and
history of those two provisions before we address your
specific questions.

     Article IX, section 9, provides in part:

           The Legislature may by law provide for the
        creation,   establishment,      maintenance      and
        operation of hospital districts composed          of
        one or more counties .  or  all
                                   ...    or  any .part. of
        one or more counties witn power to issue
        bonds   for    the    purchase,      construction,
        acquisition,    repair     or    renovation       of
        buildings   and improvements      and     equipping
        same, for hospital purposes; providing           for
        the transfer to the hospital district of the
        title to any land, buildings,         improvements
        and equipment    located wholly within           the
        district which may be jointly or separately
        owned by any city, town or county, providing
        that anv district     so created shall assume
        full resnonsibilitv for vrovidina medical and
        hosvital care for its needv inhabitants and
        assume the outstanding indebtedness         incurred
        by cities,   towns and counties for        hospital
        purposes prior to       the creation of          the
        district, . . .    providing that after its
        creation no other municivalitv or volitical
        subdivision shall have the vower to levy
        taxes or issue bonds or other obliaations for



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Honorable D. C. (Jim) Dozier - Page 2     (JM-1052)




        hosvital vurnoses or for vrovidina medical
        gare within the boundaries    of the  dis-
        trict . . . . (Emphasis added.)

See also Tex. Const. art. IX, 5 4 (a 1954 amendment
providing for the creation of county-wide hospital districts
in counties with a population of 190,000 or more).

     Article
      .            section 9, which was_. adopted
              IX, ._.                          .    . in 1962,
contains two speciric statements regarding tne obligations
of hospital districts:    (1) hospital districts are to assume
full responsibility for providing medical and hospital    care
for their needy inhabitants, and (2) hospital districts    are
to assume the outstanding    indebtedness incurred before the
creation of the district for hospital purposes by cities,
towns and counties within the district. Article IX, section
9, also contains a prohibition applicable to other political
subdivisions:   It prohibits    other political subdivisions
within the boundaries of a hospital district from expending
funds for any type of medical care, not just medical      care
for the needy.

     In 1966 this office issued an opinion that considered
whether a county that was included within the boundaries   of
a hospital   district could spend money to establish        a
community center for mental health and mental retardation
services  in accordance with the provisions      of article
5547-203, V.T.C.S. Attorney   General Opinion C-646 (1966).
The opinion concluded that      mental health and     mental
retardation  services constituted medical    care and that
therefore a county that lay within the boundaries       of a
hospital district could not spend money to establish        a
facility to provide such services.

     The next year, apparently    in response to Attorney
General Opinion C-646, the voters adopted article IX,
section 13, of the constitution, which provides:

           Notwithstanding any other section of this
        article, the Legislature in providing for the
        creation,  establishment,    maintenance    and
        operation of a hospital district, shall not
        be required to provide that such district
        shall assume full responsibility       for the
        establishment,    maintenance,   support,    or
        operation of mental health services or mental
        retardation services including the operation
        of any community mental health         centers,
        community mental     retardation  centers    or
        community  mental health     and mental       -
        tardation  centers which may exist or ?e



                            p. 5472
Honorable D. C. (Jim) Dozier - Page 3      (JM-1052)




        thereafter established within the boundaries
        of such district, nor shall the Legislature
        be required to provide that such district
        shall assume full responsibility      of public
        health department     units and clinics       and
        related public health activities or services,
        and the Legislature shall not be required to
        restrict the power of any municipality         or
        political subdivision to levy taxes or issue
        bonds or other obligations        or to expend
        public    moneys   for    the     establishment,
        maintenance, support, or operation of mental
        health services, mental retardation services,
        public health units or clinics or related
        public health activities or services or the
        operation of such community mental health or
        mental    retardation    centers    within    the
        boundaries of the hospital districts;         and
        unless a statute creating a hospital district
        shall expressly prohibit participation by any
        entity other than the hospital district        in
        the establishment, maintenance, or support of
        mental health services, mental retardation
        services, public health units or clinics or
        related public health activities within or
        partly within the boundaries of any hospital
        district,   any municipality     or any     other
        political   subdivision          state-supported
        entity within the hosp?Eal district           may
        participate   in   the establishment,       main-
        tenance, and     support of      mental    health
        services, mental retardation services, public
        health units and clinics and related public
        health activities and may levy taxes,       issue
        bonds or other obligations, and expend public
        moneys for such purposes as provided by law.

In short, article IX, section 13, created an exception   from
the article IX, section 9, prohibition on the expenditure of
funds for medical care by political     subdivisions   within
a hospital district.   We will now turn to your specific
questions.

     Your first question is:

        What is the definition of the term   'medical
        care' as anticipated by article IX, section 9
        of the Texas Constitution?

Article IX, section 9, uses the term "medical care" twice.
First, it requires hospital districts to assume       full



                            P. 5473
Honorable D. C. (Jim) Dozier - Page 4       (JM-1052)




responsibility for providing medical care for its needy
inhabitants.  Second,  it prohibits political  subdivisions
within a hospital  district from spending funds on medical
care.1

       In regard to medical care for       the needy,  it is the
responsibi~lity of the board of directors         of a hospital
district to determine what medical care is to be provided
pursuant to article IX, section 9.2 Attorney General Letter
Opinion M-88-33:        B    Attorney General Opinions M-1154
(1972)  : M-85  (1967): C-334   (1964); see aenerallv    Attorney
General Opinions JM-815, JM-746         (1987).   Similarly,  the
question of       whether   an   expenditure by     a   political
subdivision within a hospital district is an expenditure for
medical care must be determined on a case-by-case          basis.
See aenerally Attorney         General Opinions     H-1279 (1978)
(county in a hospital district may provide              ambulance
service); C-646    (1966) .

        Your second question is:

          What is the definition    of 'public health
          units or clinics' as anticipated by article
          IX, section 13 of the Texas Constitution?

Again, whether a particular establishment is a public health
unit or clinic within the meaning of article IX, section 13,
of them Texas Constitution is a determination that would have
to be made on a case-by-case basis.

        Your third question is:

           Does each of those services named in the
           above-referenced  sections of article     IX,
           section 13 have to be expressly    listed as
           being prohibited in the enabling act in order



   1.  As we pointed out, the obligation placed on hospital
districts, i.e., to assume full responsibility for medical
care for needy inhabitants, is narrower than the prohibition
placed on other political  subdivisions within the district
against spending their funds on medical care generally,  not
just medical care for indigents.

   2.  The legislature has authority to determine       the
health-care services a hospital district must provide, Tex.
Const. art. IX, § 9A, but to date the legislature has not
exercised that authority.




                             P.    5474
Honorable D. C. (Jim) Dozier - Page 5     (JM-1052)




        to be prohibited under the terms of article
        IX, section 9? Or do the services listed in
        article IX,    section 13    constitute    the
        definition  of the    term  'medical    care*?
        Certainly, the phrase '. . . public health
        units or clinics    . . .I anticipates     the
        providing of some form of medical care.

Apparently you are asking whether a provision in a hospital
district's   enabling    statute   prohibiting    a  political
subdivision within a hospital district         from  providing
medical care is sufficient to suspend any authority such a
political subdivision might otherwise have to provide mental
health or mental retardation services or public health units
or clinics.    Under article IX, section 9, any political
subdivision within a hospital ,district would be subject to
the general prohibition    on the provision  of medical  care.
Therefore, we think that article IX, section 13, was
intended to reguire‘a more specific prohibition in order to
prohibit political subdivisions within a hospital district
from providing mental health or mental retardation    services
or public health services.     We conclude therefore that the
enabling statute of a hospital district must specifically
mention mental health and mental retardation services and
public health units and clinics in order to prohibit         a
political   subdivision within a hospital district        from
exercising any authority it might otherwise have to provide
such services. &      Attorney General Opinion H-454 (1974).

      Your fourth question is:

        Referring  to   those services    listed    on
        attached 'Exhibit Two' and currently being
        performed by the Montgomery    County Health
        Department, which of those services        are
        prohibited by article IX, section 9 of the
        Texas Constitution and the Montgomery  County
        Enabling Act? Which are allowed by article
        IX, section 13, of the Texas Constitution?

The "Exhibit TwoI' you refer to is a description    of the
services offered by different divisions of the Montgomery
County Health Department, including several county health
clinics. Some of the services provided by those clinics 'may
constitute "medical care." If, however, those services are
provided by a public health clinic, as they appear to be,
the constitution does not prevent the county from providing
those services.  It is the county's responsibility, in the
first instance, to determine whether the services         *
question constitute medical care and, if so, whether   thi;
are offered by a public health clinic.



                          P. 5475
Honorable   D.   C. (Jim) Dozier - Page 6   (JM-1052)




     Your fifth question is:

        Depending  on your definition    of 'medical
        care,' and your reading of article        IX,
        section 9 and article IX, section 13 of   the
        Texas Constitution and the Montgomery  County
        Enabling Act, is the duty of        providing
        medical care for needy residents  exclusively
        imposed on the Montgomery    County Hospital
        District?

It is clear that the &&y of providing indigent health care
is placed on the hospital district.     Neither article  IX,
section 13, of the constitution    nor the Indigent Health
Care and Treatment Act, article 4438f, V.T.C.S., imposes an
obligation  on political   subdivisions within   a hospital
district to provide indigent health care.

     Your 'sixth question is:

        If the term 'medical care,' as defined,   does
        not include those services named in article
        IX, section 13, what entity has the d&y     to
        provide those services since the applicable
        portion of article IX, section 13 is clearly
        permissive,  notwithstanding   the   mandatory
        provisions of article 443613, section 4.09(b).

     Your question raises several issues.       First, your
question raises the issue of whether mental health       and
mental retardation services and services provided by public
health units and clinics constitute "medical care." We do
not think that article IX, section 13, was intended to limit
the definition of "medical care." Rather, it was intended
to allow political subdivisions  within a hospital. district
to provide  certain services, regardless   of whether   they
constitute medical care.

     YOU also note the      provisions  of article     4436b,
V.T.C.S., which allow counties and municipalities to create
public health districts. V.T.C.S. art. 4436b, 5 4.01.     The
statute also allows a county to establish     a.local health
department.  s. 5 4.07(a). Once a public health district
or a local health department is created, it &     provide the
following public health services:

           (1) personal health promotion       and   main-
        tenance services:

           (2) infectious disease control and preven-
        tion services:



                              p. 5476
Honorable D. C. (Jim) Dozier - Page 7       (JM-1052)




            (3) environmental  and consumer     health
        programs for enforcement of health and safety
        laws related to food, water, water control,
        general sanitation, and vector control;

           (4) public health    education and    informa-
        tion services:

           (5) laboratory services; and

           (6) administrative   services.

a. 5 4.09. In short, once a county joins a health district
or establishes a local health department, it has a &&Y   to
provide certain public health services. Section  4.08(a)(l)
of article 443615 provides:

            (1) no individual shall be denied public
        health services because of inability to pay
        for services, and the municipality,   county,
        or district    shall make provisions   for a
        reduced fee or no fee for individuals unable
        to pay for services in whole or in part.

Your question raises the issue of whether sections   4.08(a)
and 4.09 of article 4436b require a local health department
or health district to provide certain types of medical  care
to an indigent who is   a resident of  a hospital  district.
First, because  it is the responsibility     of a hospital
district to determine what medical care it must provide to
indigents, we cannot resolve the fact question of whether
there is an overlap in the duty placed on a hospital
district to provide medical care for its needy inhabitants
and the duty of a county within the boundaries of a hospital
district that has a duty to provide public health   services
under article 4436b. Even if there is an overlap, we do not
think that a county is prohibited from voluntarily  assumin
a responsibility that is also borne by a hospital district. 3=



   3. Hospital districts,   county health departments,   and
health districts are not required to seek out indigents and
to provide them with services. Rather, they mu&      provide
certain services when     those services    are sought    by
indigents. Therefore, even if there are overlapping respon-
sibilites in the context you ask about, neither political
subdivision is in the position of being unable to fulfill
its duty because another political subdivision has already
done so.




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Honorable D. C. (Jim)   Dozier     -   Page 8   (JM-1052)




We note that the Interlocal Cooperation       Act,  article
4413(32c), V.T.C.S.,  would permit a county (or a health
district) to contract with a hospital district     for the
provision of services that both are obligated or authorized
to provide.

     Your seventh question is:

           Your paragraph on page 2 of JM-722 states:

          When a hospital district   is created  for
          the county pursuant to article IX, section
          9, of the Texas Constitution, the county
          constitutionally does not have the power
          to levy or use taxes to provide        for
          medical services for indigent residents of
          the hospital district,  as such power and
          obligation   rests  exclusively   on   the
          hospital district.

          Anticipating possible confusion caused by
       references to medical services, health care,
       medical  care, public health clinics      and
       public health services,   is this statement
       consistent with your answers to the foregoing
       questions?

     Attorney   General Opinion JM-722   (1987)   considered
whether Jackson County was liable under the Indigent Health
Care and Treatment Act, article 4438f, V.T.C.S., for health
care services    for indigent. residents of that     county.
Article IX, section 13, of the Texas Constitution was not
relevant to that question. Therefore, it was not discussed
in Attorney General Opinion JM-722. Taken out of context,
the paragraph you quote is incomplete   inasmuch as it does
not mention   that article IX, section   13, of the Texas
Constitution   makes exceptions to certain provisions     of
article IX, section 9.

                         SUMMARY

            The determination of whether a particular
       expenditure is for medical care for purposes
       of article IX, section 9, of the Texas Consti-
       tution must be made on a case-by-case   basis.
       Similarly,  the determination   of whether   a
       service constitutes mental health or mental
       retardation services or public health services
       must be made on a case-by-case basis.




                                 P. 5478
Honorable D. C. (Jim) Dozier - Page 9         (JM-1052)




            The enabling statute of a hospital dis-
       trict must specifically mention mental health
       and mental retardation   services and public
       health units and clinics in order to prevent
       a political  subdivision within a     hospital
       district  from exercising any authority     it
       might otherwise have to provide such services.

            Article IX, section 13, of the Texas
       Constitution does not impose a duty on any
       political subdivision to provide mental health
       or mental retardation    services or    public
       health services.

            Although we cannot determine      whether
       there is in fact an overlap, it is possible
       that a county that has established    a local
       health department or has become a member of a
       health district and a hospital district have
       overlapping  responsibilities.   There is no
       legal impediment to each of two political
       subdivisions having a duty to provide the same
       services when those services are sought by
       indigents.




                                  J’ w
                                       Very truly yo


                                            k,
                                       JIM     MATTOX
                                       Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCRHARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




                             P. 5479
