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                      The Attorney              General of Texas
                                        September        11,     1978
JOHN L. HILL
Attorney General


                   Honorable John J. Kavanagh, M.D.                 Opinion No. H- 12 4 0
                   Commissioner
                   Texas Department of Mental Health and            Re: Authority     of Department
                      Mental Retardation                            of MHMR to convert employee
                   Box 12668, Capitol Station                       residence buildings to other uses
                   Austin, Texas 787ll                              and to provide cash allowances
                                                                    to employees in lieu of housing.

                   Dear Dr. Kavanagh:

                         You have asked whether the Department of Mental Health and Mental-
                   Retardation may convert an on campus employee residence to other uses. If
                   the answer is in the affirmative, you also ask if the facility may pay a $175
                   per month cash allowance in lieu of campus housing to those facility
                   employees entitled to on campus, rent-free housing.         In our opinion the
                   Department has the authority to make a reasonable determination           as to
                   whether the best interests of the facility would be served by converting an on
                   campus residence to another use or continuing to use it for residential
                   purposes. V.T.C.S. arts. 5547-202, S 2.16; 3176; 31744 S 2; Attorney General
                   Opinion H-874 (1976).

                         In reference to your second question, the General Appropriations      Act of
                   1977 provides, in pertinent part, that

                              a house shall be furnished each Superintendent,
                              Assistant   Superintendent, Clinical and   Medical
                              Director, Business Manager, and Plant Maintenance
                              Technician.

                                 In the event housing facilities are not available for
                              institutional  personnel specified in this subsection,
                              cash allowances not to exceed one hundred seventy-
                              five dollars ($175) per month may be paid to any such
                              personnel in lieu of such house.

                   General Appropriations   Act, Acts 1977, 65th Leg., ch. 872, art. II, 5 3(c)(2), at
                   2802.




                                                    p.    4940
Honorable John J. Kavanagh, M.D.      -     Page 2 (H-1240)                               ?



       This provision does not limit the statutory authority of the Department, but
merely provides that if no facilities are “available” to furnish housing, then a cash
allowance may be paid.        The Department still has the authority to make a
reasonable determination as to what use is to be made of campus buildings. When a
determination is made that the best interests of the facility are served by using a
particular building for nonresidential purposes, the building is then “unavailable” for
use as a residence. If no other housing accomodations are available, then it is our
opinion that the allowance may be paid.

                                   SUMMARY

            The Department of Mental Health and Mental Retardation
            has the authority to determine what use is to be made of
            campus buildings.     If, as a result of the Department’s
            determinations,  no buildings are available for use as resi-
            dences, then a cash allowance may be paid to those
            employees listed in the General Appropriations Act.

                                     /----)wT&


                                     /    / JOHN L. HILL
                                    ,I ;I    Attorney General of Texas

APPROVED:                         i ~’



5s4LbLL<
DAVID M. KENDALL, First Assistant




C. ROBERT HEATH, Chairman
Opinion Committee

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