                        The Attorney          General of Texas
                                        November 8, 1977
JOHN L. HILL
Attorney General


                   Honorable Joe Resweber                  Opinion No. H-1087
                   Harris County Courthouse
                   Houston, Texas  77002                   Re: Construction and
                                                           maintenance of a non-
                                                           denominational chapel
                   Dear Mr. Resweber:                      at a public hospital.

                        You inquire whether a nondenominational chapel may be
                   built with private funds at a hospital owned and operated
                   by the Harris County Hospital District.   If it may be built,
                   you inquire whether the Hospital District may maintain it.

                          The Harris County Hospital District was created to pro-
                   vide medical and hospital care for needy inhabitants of the
                   county. Tex. Const. art. 9, § 4; V.T.C.S. art. 4494n: see
                   Attorney General Opinion H-454 (1974). In Attorney General
                   Opinion M-1255 (1972), this office considered whether the
                   Harris   County Hospital District  could employ chaplains.
                   Noting the contributions chaplains could make toward dealing
                   with the psychological and social aspects of -illness, and
                   the long history of chaplaincies in Texas state hospitals,
                   the opinion concluded that the Hospital District had author-
                   ity under its statute to employ them. In our opinion, the
                   Board of Hospital Managers could determine that the construc-
                   tion and maintenance of a hospital chapel would benefit
                   patients and could accept donations for constructions of the
                   chapel as "not inconsistent with proper management and ob-
                   jects" of the district.     See V.T.C.S. art. 4494n, 9 15.
                   However, as a public bodymnanced      by public funds, Arseneau
                   v. Tarrant County Hospital Dist., 408 S.W.2d 802 (Tex. Civ.
                   APP. -- Fort Worth 1966, writ ref'd n.r.e.); Attorney General
                   Opinion H-454 (1974), its actions must not violate state and
                   federal constitutional provisions on the separation of church
                   and state.

                        Article 1, section 6 of the Texas Constitution provides
                   in part:

                               All men have a natural and indefeasible
                             right to worship Almighty God according to




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Honorable Joe Resweber   - Page   2   (H-1087)



          the dictates of their own consciences.  NO
          man shall be compelled to attend, erect or
          support any place of worship, or to main-
          tain any ministry against his consent.

Article 1, section 7 provides as follows:

            No money shall be appropriated, or drawn
          from the Treasury for the benefit of any
          sect, or religious society, theological
          or religious seminary; nor shall property
          belonging to the State be appropriated for
          any such purpose.
Church v. Bullock, 109 S.W. 115 (Tex. 19081, the only relevant
case construing these provisions, does not indicate that con-
struction and maintenance of the chapel would violate them. In
fact, the court noted approvingly that religious services were
at that time held in the chapel of the State University and in
other public buildings.  Several Attorney General Opinions on
similar questions indicate that the construction of a nondenom-
inational chapel for voluntary use in a public hospital would
not violate the Texas Constitution.  Attorney General Opinions
WW-1409, WW-1269 (1962); V-940 (1949). In our opinion, the dis-
trict may build a nondenominational hospital chapel with donated
funds and may thereafter maintain the chapel without violating
article 1, sections 6 and 7 of the Texas Constitution.   The
courts of other states, construing similar provisions of their
own constitutions, have approved the donation of nondenomina-
tional chapels to public institutions.   Reichwald v. Catholic
Bishop of Chicago, 101 N.E. 266 (111. 1913) (chapel at County
poor farm); Peopre ex rel. New York League for Separation of
Church and State v. Lyons, 21 N.Y.S.Zd 250 (Sup. Ct. 1940) (prison
chapel); State v. Williamson, 347 P.2d 204 (Okla. 1959) (chapel
at state orphanage).

     The First Amendment to the United States Constitution which
applies to the states by virtue of the Fourteenth Amendment pro-
vides in part that

            Congress shall make no law respecting
          an establishment of religion, or prohib-
          iting the free exercise thereof. . . .

The United States Supreme Court has not dealt with a question
like the one you present; however, opinions dealing with
other issues have referred to circumstances under which the
government could build and maintain a nondenominational chapel
for voluntary use. In School District of Abington Township v.
Schempp, 374 U.S. 203 (1963), the court determined that reli-



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Honorable Joe Resweber   - Page 3   (~-1087)



gious exercises in a public school we;, unconstitutional, but
at the same time, some of the opinions indicated that such
practices as providing chaplains and churches for persons in
the military and in prisons were constitutional.  374 U.S. at
203, 213, 296-99, 306. Justice Brennan in a concurring opinion
stated that such practices conceivably violated the establish-
ment clause, but probably could not be struck down without
serious interference with religious liberties protected by the
first amendment.  374 U.S. at 296-97. In our opinion, the
courts would hold that the hospital district may, consistently
with the establishment clause, provide a chapel for voluntary
use by its patients, who are cut off from other places of wor-
ship at a time when they may have particular need for the con-
solations of religion.

     A four part test has been developed for determining whether
the establishment clause has been violated:

          First, does the Act reflect a secular
          legislative purpose? Second, is the
          primary effect of the Act to advance or
          inhibit religion? Third, does the admin-
          istration of the Act foster an excessive
          government entanglement with religion?
          Fourth, does the implementation of the
          Act inhibit the free exercise of religion?

Tilton v. Richardson, 403 U.S. 672, 678 (1971); Attorney General
Opinion H-511 (1975). Where a free exercise claim is not at
issue, the fourth part is sometimes dropped from the test.
See, -,    Committee for Public Education & Religious Liberty v.
Kuist,   supra; Letter Advisory No. 128 (1977). See also Attorney
General Opinion M-1255 (1972) at 12; Annot., 36 A.L.R.3d 1256
(1971).

     We believe the construction and maintenance of a hospital
chapel for voluntary use reflects a secular purpose in that it
will assist some patients to maintain peace of mind in the face
of serious illness, thereby facilitating treatment. See Attorney
General Opinion M-1255 (1972) at 8. Its primary effectis neither
to advance nor inhibit religion but to avoid both of those
effects. We do not believe that the employment of chaplains
and maintenance of a chapel in a public hospital foster ex-
cessive government entanglement with religion, in view of the
need to permit the free exercise of religion by hospital patients.
Finally, the provision of a chapel does not inhibit the free
exercise of religion but in fact tends to prevent its inhibition.
Since the chapel is to be nondenominational, it will not be used
to promote one religion and inhibit another.




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Honorable Joe Resweber      - Page 4 (H-1087)



      In our opinion, the Harris County Hospital District may
 constitutionally permit the construction of a nondenominationa
 chapel with donated funds and may thereafter maintain it for
voluntary use. You have asked a legal question based on very
 few factual details, and we cannot pass on any fact situation
 beyond that presented here.

                         SUMMARY

          The Harris County Hospital District has
          statutory authority to construct and
          maintain a hospital chapel to be built
          with donated funds and may do so con-
          sistently with state and federal con-
          stitutional provisions on separation of
          church and state.




                                    HN L. HILL
                                   ttorney General of Texas




C. ROBERT HEAT%, Chairman
Opinion Committee

jst




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