           TRIE    A~RNEY               GENERAL

                           OPmXAS




                    December 13, 1968


Hon. John Kinross-Wright             Opinion No. M- 314
Commissioner, Texas Department
  of Mental Health and Mental        Re:   Whether under Article
  Retardation                              5547-201-204, inclusive,
Box S, Capitol Station                     Vernon's Civil Statutes,
Austin, Texas 78711                        as amended, the Texas
                                           Department of Mental
                                           Health and Mental Re-
                                           tardation may legally
                                           impose the requirement
                                           on community health cen-
                                           ters to match with local
                                           revenue on a fifty-fifty
                                           basis each grant-in-aid
                                           as a condition of eligi-
                                           bility for such grant-
Dear Dr. Kinross-Wright:                   in-aid?
          You have requested our opinion concerning the legality,
under Article 5547 - 201-204, inclusive, Vernon's Civil Statutes,
of the Department's policy of requiring community mental health
centers, community retardation centers, and combined mental health
and retardation centers established by local agencies under au-
thority of the above Act to match with local revenue on a fifty-
fifty basis each grant-in-aid as a condition of eligibility
for such grant-in-aid.
          The pertinent parts of Article 5547 - 203, Vernon's
Civil Statutes, read as follows:
            vSection 3.01. (a) One or more cities,
     counties, hospital districts, school dletricts,
     rehabilitation districts, state-supported insti-
     tutions of higher education, and state-supported
     medical   schools, or any combination of these,
     may cooperate, negotiate, and contract with each
     other through their governing bodies to establish
     and operate a community center.

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Hon. John Klnross-Wright, page 2   (M-314)


         (b) As used In this Act, a 'community center'
    may be:
         I I
         (1) a community mental health center,
    which provides mental health services; or
         (2)  a community mental retardation
    center, which provides mental retardation
    services; or
         (3)  a community mental health and mental
    retardation center, which provides mental
    health and mental retardation services.
         "Section 3.10. A community center may
    accept gifts, grants, and donations of money,
    personal property, and real property for use
    in the administration of Its programs and
    services."
          Article 5547 - 204, Vernon's Civil Statutes, concerning
state grants-in-aid, reads as follows:
                         Plan
         'Section 4.01. As soon as possible after
    its establishment, a community center shall formu-
    late and submit to the Department:
         (1) a copy of the written agreement between
    the participating local agencies;
         (2)  a plan, within its projected financial,
    physical, and personnel resources, to develop
    and make available,to the residents of the region
    a full range of effective mental health or mental
    retardation services, or both.
             Eligibility for grants-in-aid
         "Section 4.02. A community center
    eligible
         ~ . to receive state grants-in-aid
         (1) the population within the region
    served is 75,000 or more according to the last
    preceding federal.census; provided, however,
    if the Commissioner determines'that the pur-
    poses of this Act would be served by declaring
    a center serving a region of less than 75,000
    persons ellgible ,for grants-In-aid, then the
    center is eligible for grants-in-aid; and
         (2) it qualifies according to the rules
    of the Department.

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   .      .




Hon. John Kinross-Wright, page 3     (M-314)


       Sec. 4.02 amended by Acts 1967, 60th Leg., p. 203,
       ch. 115, Sec. 1, emerg.eff. May 4, 1967.
              Rules to establish qualifications
            'Section 4.03. (a) The Department shall
       make rules, consistent with the purposes, policies,
       principles, and standards provided by this Act,
       establishing the minimum standards relating to the
       amount, quality, kinds, and accessibility of
       services which must be provided by a community
       center in order to qualify It for state grants-
       In-aid.
            (b) The Department shall make rules under
       which a newly established community center with
       a sound plan for the development of the full
       range of services may qualify for grants-in-
       aid although it does not presently qualify under
       Subsection,(a) of this section.
            (c) The Department shall hold hearings
       on all proposed rules under this section. Com-
       munity centers and local agencies shall be given
       notice and an opportunity to testify. Delivery
       or publication of notice may be given in any
       form which is reasonably calculated to give
       actual notice.
                        Grants-in-aid
            "Section 4.04. The Department shall allocate
       to the eligible community centers the money ap-
       propriated to the Department for that purpose.
                        Allocation
            "Section 4;05. In determining the percentage
       of the total amount available to be allocated to
       each eligible community center, the Department
       shall give due consideration to the following
       factors:
            (1) the population of the region served
       by the center;
            (2) the socio-cultural and economic
       characteristics of the region;
            (3) the rate of mental disorders and
       disabilities in the region as revealed by
       reliable statistics;

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                                                  .   .   .




Hon. John Kinross-Wright, page A (~-314)


           (4) the ability or potential ability of
     the center to provide comprehensive services
     for all residents of the region; and
           (5),  the quality of the center's services
     and the effectiveness of the services In terms
     of average cost per patient-stay and other
     relevant indices, or the potential quality and
     effectiveness of the services. Acts 1965, 59th
     Le
     1g%jy      165, ch. 67, Sec. 1, eff. Sept. 1,


          Article 5547 - 203 provides the authority for local
agencies to establish communlt mental health and retardation
centers, and Artlole 5547 - 20c provides the means by which
eligible community centers could receive state grants-in-aid.
          Under Article 5547 - 204, in order to be eligible
to receive a grant-in-aid, It is necessary for each community
center to comply with certain requirements.
          The initial requirement, as found in Section 4.01
(1) and (2), is that the center submit to the Department of
Mental Health and Mental Retardation a copy of the written
agreement between the participating local agencies if more
than one local agency participates and a plan to develop and
make available to the residents of the region a full range of
effective mental health and/or mental retardation services.
          The next requirement for eligibility, found in Sec-
tion 4.02 (l), is that the population within the region served
be 75,000 or more; however, if the Commissioner determines that
the purposes of this Act would be served by declaring a center
serving less than 75,000 persons eligible for grants-in-aid,
then the center is eligible.
          Also, under Section 4.02 (2), a center, to be eligible,
must qualify according to the rules of the Department. This
does not appear to be a rant of general rule-making power, be-
cause In Section 4.03 (a7 ,(b), and (c) the Act sets out %ules"
to establish qualification. The rule-making power set out in
this Section does not appear to include the power to require
"fifty-fifty matching."
          Section 4.04 provides for grants-in-aid, and the
clear Intent of this Section of the Act seems to be that when
community centers become ellgibZe by compl ing with the require-
ments set out in Sections 4.01, 4.02, and $ .03, then the Depart-
ment shall and must allocate to these centers the money appropriated

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   .      -




Hon. John Klnross-Wright, page 5 (M-314)


to the Department for that purpose,
          Section 4.05 of the Act sets out certain definite
guidelines for the Department to follow in determining the
percentage of the total amount of money avallable'whlch is
to be allocated to each eligible community center.
          From a careful reading of Article 5547 - 203-204,
it would seem clear that It was the Intent of the Legislature
to place a mandatory obligation on the Department of Mental
Health and Mental Retardation to allocate moneys to any com-
munity center meeting the requirements set out in the Act.
If the Department of Mental Health and Mental Retardation were
to Impose an additional requirement to the effect that each
center, regardless of Its abilities to raise revenue and Its
specific needs and services, match the grant-in-aid on a fifty-
fifty basis, the effect of such action would be tantamount to
amending the original Act. If'the Legislature had Intended
these funds to be distributed on such an arbitrary "flfty-
fifty matching" basis, it would have undoubtedly included
that requirement In the original Act. To impose such a re-
quirement on every center would be an abuse of the discretion
entrusted,in the Department.
          Furthermore, to require "fifty-fifty matching" as
a qualification for any center to receive grants-in-aid under
the Act could definitely have the effect of denying to certain
low Income communities, unable to raise local revenue to such
extent, any of the benefits of the Act , an unreasonable result
and one contrary to the manifest Intention of the Legislature.
          Therefore, we must necessarily conclude that it would
be outside of the legislative Intent of Article 5547 - 201-204,
Inclusive, to require community health and retardation centers
to match with local revenue on a fifty-fifty basis each grant-
In-aid as a condition of eligibility for such grant-in-aid.
                       SUMMARY
            Pursuant to Article 5547 - 201-204, ln-
       cluslve, Vernon's Civil Statutes, as amended,
       the Texas Department of Mental Health and Men-
       tal Retardation may not legally impose an ar-
       bitrary requirement on all community mental
       health and mental retardation centers to match
       with local revenue on a fifty-fifty basis each
       grant-in-aid as a condition of eligibility for
       such grant-in-aid. The Department is required

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Hon. John Kinross-Wright, page 6 (M-314).


     to consider the statutory guidelines for each
     center in determining the amount of funds to
     'be ailocated'and which shall be dependent upon
     Consideration of the feasibility of the center's
      ;;;r;:
          “-““,,e.
              / articlpation under Se&ion 4 of Article




                                        General of Texas
Prepared by Charles Parrett
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
 Kerns Taylor, Chairman
'Jack Sparks
 Jim Swearingen
 Pat Cain
 Ralph Rash
A. J. CARUBBI, JR.
Executive   Assistant




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