                     September 2, 1976


              Kenneth D. Gaver      Opinion No. H-874

Texas Department of Mental Health   Re: Use of state-owned
     and Mental Retardation         equipment and facilities
P. 0. Box 12668, Capitol Station    by MHMR physicians to
Austin, Texas 78711                 engage in private medical
                                    practice conducted for
                                    profit.

Dear Dr. Gaver:

     You have supplied us with a proposed policy statement
of the Mental Health and Mental Retardation (hereafter MHMR)
Board and a proposed administrative order of the Commissioner
to implement it. you ask about the legality of the contemplated
steps.

     The proposed policy statement recites that the competency
of MHMR physicians would be improved and the recruitment and
retention of physicians would be aided if MHMR physicians
were allowed to carry on private practices at MHMR facilities.
It then resolves that:

          [Plhysicians employed by facilities of the
          Texas Department of Mental Health and
          Mental Retardation be and are authorized
          to carry on the private practice of medicine
          at facilities of Texas Department of Mental
          Health and Mental Retardation under such
          limitations, terms and conditions as shall
          be prescribed by the Commissioner of the
          Department.

The Commissioner's complementing administrative order tenta-
tively details the "limitations, terms and conditions" which
the Commissioner proposes to prescribe if the policy can be
implemented.




                         p. 3682
The Honorable Kenneth D. Gaver - page 2 (H-874)



     In our opinion, the policy cannot be implemented because
the Board of Mental Health and Mental Retardation has no
authority to adopt it. The determination of public policy
is within the plenary power of the Legislature, limited only
by constitutional constraints.  State v. Cit? of Austin, 331
S.W.Zd 737 (Tex. Sup. 1960). Whenthe Leqis ature
acted, an administrative agency is not free to nullify the
Legislative policy. State v2 Jackson, 376 S.W.2d 341 (Tex.
Sup. 1964).

      Subject to constitutional requirements, the use of
public buildings is within the regulatory power of the
Legislature.   ~,~o~r~e~n~~,~~~ie~~61sjw.
197 (Tex. Sup.
S.W. 197; 46 Tex. Jur.2d, Public Buildings and Grounds 9 2.
By the enactment of article 666a, V.T.C.S., the Legislature
authorized the Board of Control to lease for agricultural
and commercial purposes "all public grounds belonging to the
State of Texas" under its control, but only after advertising
the lease proposal and securing the approval of the Attorney
General. The Legislature also enacted article 665, V.T.C.S.,
which permits the Board of Control to allocate space in any
of the public buildings under its control "to the departments
of the State Government and for the uses authorized by law."

     Both statutes were in effect at the time control of
certain institutional property was transferred from the
Board of Control to the Board of Texas State Hospitals and
Schools and, later, to the Texas Department of Mental Health
and Mental Retardation.  In our opinion, the statutes trans-
ferring control of such property from the Board of Control
to the intermediate agency and then to the MHMR board did
not vest in the MHMR board a broader discretion with respect
to the use of the facilities than previously existed in the
Board of Control. See V.T.C.S. arts. 5547-202, 9 216; 3174b;
Attorney General Opinion M-995 (1971).

     We think the Legislature has indicated the basis upon
which the use of state property should be considered, and we
do not believe the use of MHMR facilities by physicians
acting in a private commercial capacity is a use "authorized
by law" for which the board may legally allocate space in
the public buildings under its control without resort to
legislatively required standards.  Section 2.16 of the Texas




                          p. 3683
The Honorable Kenneth D. Gaver - page 3 (H-874)



Mental Health and Mental Retardation Act incorporates those
statutory restrictions by reference and the policy-making
authority of the board is expressly limited by section
2.11(a) of the Act:

          The Board shall formulate the basic and
          general policies, principles and standards
          stated in this A&, to guide the Department
          in admixsterinq  this Act.

Cf. Ex parte Conqer, 357 S.W.2d 740 (Tex. Sup. 1962);
--
Godley v. Duval County, 361 S.W.2d 629 (Tex. Civ. App. --
 San Anton?0 1962, no writ).

     We have not overlooked Attorney General Opinion V-993
(1950), which, on the authority, first, of a general law not
applicable here and, second, of certain lanquaqe'found in
the 1949 General Appropriations Act for State Hospitals and
Special Schools, concluded that the Board for State Hospitals
and Special Schools could authorize physicians, dentists,
barbers and other professional employees at such institutions
to render professional services to persons other than wards
of the state, and to allow them the use "to some extent" of
state facilities for the performance of such services.

     The V-993 opinion stressed that general law then allowed
the board "to appoint all officers and employees of such
institutions and fix their salaries and wages" and that the
1949 General Appropriations Act authorized institutional
employees to receive "such perquisites as the Board may by
rule and regulation prescribe" and authorized the board to
allow emoluments to board employees "[iln recognition of
salaries paid within institutions and in order to attract and
retain qualified supervisory personnel."  By contrast, current
general law now governing the Department provides that "[tlhe
numbers of employees and the salaries shall be as fixed
in the general appropriations bill." V.T.C.S. art. 5547-202,
S 2.01A. In addition, the 1975 General Appropriations Act
(pursuant to articles 6813b and 6252-11, V.T.C.S.) specifies
the salaries, emoluments, and incentive payments which may
be granted to physicians of the Department.  See provisions
labeled "Exempt Positions" (p. 2509), "Specialty
Certification" (p. 2512), "Classified Positions" (p. 25121,
"Employment of Physicians and Dentists" (p. 2513), "Services




                           p. 3684
The Honorable Kenneth D. Gaver - page 4        (~-874)



to Employees" (p. 2516), and "Emoluments" (p. 25191, all
found in the Special Provisions applicable to the Department
of Mental Health and Mental Retardation. Acts 1975,  64th
Leg., ch. 743 at 2417, 2509, et seq. In our opinion, Attorney
General Opinion V-993 must belimited  to its particular facts,
which are not applicable here.

     Consequently, we advise that it is not within the present
legal authority of the Texas Board of Mental Health and Mental
Retardation to adopt the proposed policy statement and to
require its implementation.  We do not reach questions posed
by the administrative order.

                       SUMMARY

            It is not within the present authority
            of the Texas Board of Mental Health and
            Mental Retardation to adopt and implement
            a contemplated policy that MHMR physicians
            be authorized to carry on the private
            practice of medicine at MHMR facilities.

                                  Very truly   yours,



                          #L.&S   Attorney General of Texas

APPROVED:




Opinion Committee

jwb




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