The Honorable Melvin Rowland         Opinion No.   H-835
Chairman
Texas Health Facilities              Re: Whether a Veterans
     Commission                      Adminfstration Hospital
314 Highland Mall Blvd.              is required,to obtain a
Austin, Texas 70752                  certificate of need or
                                     exemption certificate
                                     from the.Texas Health
                                     Facilities Cemmispion..
Dear Mr. Rowland:
     You have requested our opinion regarding whether the
Veterans Administration must obtain a certificate of need
or an exemption certificate from the Texas Health Facilities
Commission, pursuant to article 4418h, V.T.C.S., before it
may construct a hospi.tal. Article 4418h provides, in
section 3.01:
             Each person must obtain from the
          commission a certificate of need or an
          exemption certificate in accordance with
          this Act for a proposed project to:
               (1) substantially expand a service
          currently offered or provide a service
          not currently offered by the facility;
               (2) construct a new facility or
          change the bed capacity of an existing
          facilityt
               (3) modify an existing facility:
               (4) convert a structure into a
          health-care facility: or
               (5) organize an HMO which requires
          a new or modified facility. (Emphasis
          added).




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        The Honorable Melvin Rowland - page 2 (H-835)


        "Person" is defined in section 1.03(14) as
                 an individual, sole proprietorship, charity,
                 trust, estate, institution, group, association,
                 firm, joint venture, partnership, joint stock
                 company, cooperative, corporation, the state
                 or a political subdivision or instrumentality



                 sentative or any &her     legal entity.   (Emphasis
                 added).
             The Veterans~Administration is without question an
        "instrumentality of the federal government." It is clear,
        however, that
                  [t]he United States may perform its
                  functions without conforming to the police
                  regulations of a state. Arizona L Calif-
                  ornia, 283 U.S. 423, 451 (1931).
        One of the "functions" of the Veterans Administration is to
        "provide hospitals." 39 U.S.C. s 5001.
             In Arizona v. California, the United States Supreme
        Court hem,?f        Congress had the power to authorize the
        construction of Boulder Dam, the Secretary of the Interior
        had no obligation to submit the plans and specifications to
        the state engineer for approval, as required by state law.
        su ra at 151-52. See also Leslie Miller, Inc. v. State
        Akansas      352 U~~(~Innn~r~s,.                         v.
        slk Contra; Commission  of Penns
                           ec ark  that y lvania, 318 U.S. 261 (19431,
        theSupreme Court d 1
                  in the absence of Congressional consent,
                  there is an implied constitutional immunity
                  of the national government from state
                  taxation, and from state regulation of the
                  performance, by federal officers and agencies,
                  of governmental functions. -Id. at 269.




                                 p. 3523
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        The Honorable Melvin Rowland - page 3   (H-835)


             A federal statute relating to the Veterans Administra-
        tion could be construed to provide such consent. The
        statute provides:
                 The Administrator, on behalf of the United
                 States, may relinquish to the 'State in ;,
                 which any lands or interests therein under
                 his supervision or control are situated,
                 such measure of legislative jurisdiction
                 over such lands or interests as is neces-
                 sary to establish concurrent jurisdiction
                 between the Federal Government and the
                 State concerned. Such partial relinquish-
                 ment of legislative jurisdiction shall be
                 initiated by filing a notice thereof with
                 the Governor of the State concerned, or
                 in such other manner as may be prescribed
                 by the laws of such State, and shall take
                 effect upon acceptance by such State.
                 38 U.S.C. s 5007.
        We have been advised by the Office of the Governor, however,
        that the Administrator of the Veterans Administration has not
        filed any such notice to relinquish legislative jurisdiction.
        As a result, we must conclude that the State of Texas is
        without authority to require the Veterans Administration to
        obtain a certificate of need or an exemption certificate from
        the Texas Health Facilities Commission before it may construct
        a hospital.
                             SUMMARY
                 The State of Texas is without authority
                 to require the Veterans Administration
                 to obtain a certificate of need or an
                 exemption certificate from the Texas
                 Health Facilities Commission before it
                 may construct a hospital.




                                       Attorney General of Texas




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The Honorable Melvin Rowland - page 4   (H-835)


APPROVED:




Opinion Committee
jwb




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