                       November 1, 1972


Hon. Joe Resweber             Opinion No. M- 1255
County Attorney
Harris County Courthouse      Re:   Authority of Harris
Houston, Texas    77002             County Hospital District
                                    to operate a chaplain
                                    program in its hospitals.

Dear Mr. Resweber:

     You ask our opinion in answer to two questions:

          "1. May the Harris County Hospital District
          legally employ on a full time basis qualified
          Hospital Chaplains to operate a Chaplain prog-
          ram for District hospitals?

          "2 . May the Harris County Hospital District
          legally employ qualified religious persons in
          training positions, which lead to qualifi-
          cations as Hospital Chaplains?"

     Our answer to your first question is "Yes" and our ans-
wer to your second question is a qualified "Yes".

     Our anawers to your questions must be determined with-
in the context of two propositions.  First. whether the Texas
constitutional and statutory provisions pursuant to which the
hospital district was created authorized the chaplaincy prog-
rams in question. Second, whether the establishment clause
of the First Amendment to the Constitution of the United




                           -6141-
Hon. Joe Resweber, page 2       (M-1255)


                                                            2
States1 or Article I, Section 7 of the Texas Constitution
prohibit these programs.

     We find no court decision of any jurisdiction in point;
nor do we find any opinion of the Attorney General of Texas
bearing on these questions.

     The Constitution of Texas, Article IX, Section 4, adopted
in Nwember,  1954, authorizes the legislature to provide for
the creation of county-wide hospital districts in certain
counties and imposes the condition,

          II
           . . . that such Hospital District shall
          assume full responsibility for providing
          medical and hospital a    to needy in-
          habitants of the county, . . .'I
          (Emphasis added)

     For the reasons hereinafter stated, we hold that the
service of a chaplain is a long, well-established part of
medical and hospital care.

     The legislature had previously enacted Article 4494n,
Section 1, Vernon's Civil Statutes, which became effective
upon adoption of this Section 4, authorizing:

           . . . the establishment of a hospital or
          hospital system to furnish medical aid and
          hospital care to the indigent and needy
          persons residing in said Hospital Dis-
          trict: . . . M


     1                                "Congress shall make no
      This clause reads as follows:
       law respecting an establishment of religion, or pro-
      hibiting the free exe,rcise thereof: . . ."
     2
      This Section reads as follwss    "No money shall be ap-
      propriated, or drawn from the Treasury for the benefit
      of any se&, or religious society, theological or re-
       ligious seminary; nor shall property belonging to the
      State be appropriated for any such purposes."
                            -6142-
.




    Hon. Joe Resweber, page 3       (M-1255)



         We are squarely confronted with the question of whether
    the chaplain programs3 whit   are the subject of your inquiry
                                2
    are within contemplation of the constitutional and statutory
    authorization to the hospital district,
                II
                 . . . to furnish medical aid and hospital
                care to the indigent and needy persons re-
                siding in said Hospital District: . . ."
                (Emphasis added).



         3
          Webster's Third New International Dictionary defines
           chaplain as "A Clergyman officially attached to the
          army or navy, to some public institution, or to a
           family or court."

            The same authority defines "clergyman" as, "A member
            of the clergy: an ordained minister:   a man regularly
            authorized to preach the gospel and administer its
            ordinances:  one in holy orders."

            Then job description of the position classification
            of chaplain prescribed in the original Position
            Classification Plan adopted in 1961 has remained sub-
            stantially the same to the present time.    Generally,
            a chaplain is required to be a graduate ordained min-
            ister  of religion. He performs the usual ministerial
            duties of conducting services and providing pastoral
            care and counseling under the particular specialized
            conditions of the institution.    All this is performed
            for pat.ients and .students in training and their fami-
            lies within t.he framework of his ordination vows and
            the administrative and professional policies of the
            institution in which he serves. He is a member of the
            staff of the institution. Chaplains Classes II and 111
            have supervisory duties over those of a lower class.
        4
            This opinion considers only si,tua,tionsof voluntary
            pa'tients and not those who may be incarcerated or de--
            tained by any order of the sovereign, whether under
            the police, public health or other power, nor persons
            in the military forces. The sovereign is constitutionally
                                   -6143-
Hon. Joe Resweber, page 4             (M-1255)



     The position or classification of chaplain has been pro-
vided for by the general law of Texas since 1961. Art.
6252-11, Sec. 3, V.C.S.   It was named in the original Posi-
tion Classification Plan filed with the Governor on May 10,
1961. When employees in the State Hospitals and Special
Schools came under this Plan on September 1, 1963, two
additional classes of chaplain, numbers II and III were
added. Since that time these three classes of chaplains
(Chaplain I, II and 111, class numbers 5081, 5082 and 5083
respectively) have been included among those positions auth-
orized by the legislature pursuant to Article 6252-11, Sec-
tions 1, 2 and 3. The general appropriation act for each
year beginning September 1, 1961 through the last Act for
the biennium ending August 31, 1973 has expressly named
these cla sea of chaplains and made provisions for their
salaries. Y



     required to furnish chaplains to persons incarcerated
     under its authority. Barrett v. Rodqers, 410 F.2d
     995 (Ct. of App., Dist. of Col. Cir. 1969): Horn v.
     People of Californis, 321 F.Supp. 961, (D.C.E.D.Cal.
     1968, aff. without Opin., 436 F.2d 1375, cert. den.
     401 U.S. 976); Military Law Review, Vol. 55 (Winter
     1972). p. 1, 18-21, "Constitutional Rights of Priso-
     ners ." For persons in the military, chaplains have
     been provided by the several military departments
     from the earliest history of our country. The con-
     stitution probably would so require. Maryland Law
     Review, Vol. 24 (No. 4, Fall 1964), p. 377, "Military
     Chaplains-A Constitutionally Permissible Accommodation
     Between Church and State."
     5
         1)   Acts 57th   Leg.,   1st C.S., 1961, p. 374, 380
         21   Acts 58th   Leg.,   1963, R.S., p. 1642, 1648
     3)       Acts 59th   Leg.,   1965, R.S., p. 1922, 1928, 1929
     4)       Acts 60th   Leg.,   1967, R.S., p. 2300, 2306
     5)       Acts 60th   Leg.,   1st C.S., 1968, p. 346, 355




                                  -6144-
Hon. Joe Resweber. page 5         (M-1255)



      In addition to the foregoing authorizations for chap-
lains, the legislature in 1961 and for each year since that
time,  in each of the general appropriations acts, has auth-
orized certain compensations for 'I. . . interns, chaplains
in training, and student nurses."   (Emphasis added)6

     We note here that compensation is prwided  for chaplains
in training as well as for interns and student nurses.

     The current general appropriation Act, 7 (Article II,)
makes this provision applicable to the following agencies
or departments of the state:  Department of Health, Department



      6)   Acts 61st Leg.,   2d. C.S., 1969, p. 575, 585
      7)   Acts 61st Leg.,   2d. C.S., 1969, p. 997, 1007
      8)   Act8 62nd Leg.,   1971, R.S., p. 3778, 3788
      9)   Acts 62nd Leg.,   1972, 3d. C.S., p. v-17, 27,
           Journal Supp.

     %     Acts 56th Leg., 3d C.S., 1959, p. 496
      2)   Acts 57th Leg., 1st C.S., 1961, p. 243
      3)   Acts 58th Leg., 1963, R.S., p. 1436
      4)   Acts 59th Leg., 1965 R.S., p. 1729
      5)   Acts 60th Leg., 1967, R.S., p. 2133-2134
      6)   Acts 60th Leg., 1st C.S., 1968, p. 68
      7)   Acts 61st Leg., 2d. C.S., 1969, p. 280
      8)   Acts 61st Leg., 2d. C.S., 1969, P. 684
      9)   Acts 62nd Leg., 1971, R.S.. p. 3484
     10)   Acts 62nd Leg., 1972, 3d. C.S., S.B. 1,
           p. 11-41, Journal Supp.

     This provision in the current Act (Acts 62nd Leg.,
     1972, 3d. C.S. p. II-41), which is in all respects
     similar to the provisions in each of these Acts,
     reads as follws:   "As compensation for services
     rendered, any institution under the jurisdiction
     of the respective governing boards may provide




                             -6145-
Hon. Joe Resweber, page 6      (M-1255)



of Mental Health and Mental Retardation, Mental Hospitals
and Centers, Schools for Mentally Retarded, Texas Researc
                                                          B
Institute of Mental Sciences and the Texas youth Council.
Our information from the State Classification Officer is
that under authority of the general appropriation act which
covered the fiscal year September 1, 1971, and ending Au ust
31, 1972, these state agencies employed forty chaplains. SI



     free meals for food service personnel and volunteer
     workers, and may furnish housing facilities, meals
     and laundry service in exchange for services rendered
     by interns, chaplains in training, and student nurses."
     7
      Acts 62nd Leg., 1972, 3d C.S., S.B. 1, Journal Sup-
       plement.
     8This authorization is under the heading "SPECIAL PRO-
      VISIONS RELATING TO ALL HOSPITALS, SPECIAL SCHOOLS,
      YOUTH INSTITUTIONS, AND AGENCIES OR OFFICES OF ARTICLE
      II" which heading begins at page II-33 of the current
      general appropriation act. Article II of the act is
      entitled "PUBLIC HEALTH, HOSPITALS, SPECIAL SCHOOLS
      AND YOUTH INSTITUTIONS" (at p. II-l). See also Table
      of Contents, at p. l-vii, Journal Supplement.

     'These agencies and the number of chaplains employed
      by each on May 31,!1972, was as follows:

     (1) State Health Dept., a total of 4 chaplains: San
     Antonio State Chest Hosp., 2: East Tex. Chest Hosp.,
     1; Harlingen State Chest Hosp., 1.
     (2) Texas Youth Council, a total of 11 chaplains:
     Deputy Executive Director and Supervising Chaplain
     plus an assis,tant, 2; Waco State Home, 1; Brownwood
     State Sch. for Girls, 1: Gatesville State Sch. for
     Boys. 4; Mountain View State Sch. for Boys, 2; and
     Gainsville State Sch. for Girls, 1.




                            -6146-
Hon. Joe Resweber, page 7      (M-1255)



     We are informed that authorizations for payment of chap-
lains in many of the state medical and mental hospitals and
other eleemosynary institutions has been expressly provided
for in the general appropriation acts for many years prior to
1961. We have made two spot checks at random of the general
appropriation acts for these institutions for two bienniums.
The first is for the period 1921-1923 (Acts 37th Leg., 1st
C.S., 1921, ch. 36) and the second is for the period 1941-
1943 (Acts 47th Leg., 1941, R-S., ch. 567). The first spe-
cifically lists appropriations for chaplains in eleven dif-
ferent institutionslO and the second makes specific appro -
riation for chaplains in fifteen different institutions. 1P



    (3) Texas Dept. of Mental Health and Mental Retarda-
    tion, a total of 25 chaplains: Texas Research Insti-
    ,tute for Mental Sciences, 1; Austin State Hosp., 5;
    San Antonio State Hosp., 3; Vernon Geriatric Center,
    1: Terre11 State Hosp., 2; Rusk State Hosp., 1: Wichita
    Falls State Hosp., 1; Big Spring State Hosp., 1: Mexia
    State Sch.,  2: Denton State Sch., 1: Richmond State
    Sch., 1; Corpus Christi State Sch., 1; San Angelo
    Center, 1; Travis State Sch., 1; Abilene State Sch.,
    1: Austin State Sch., 1; and Lubbock State Sch., 1.

     In addition to these forty Texas Dept. of Corrections
     employed eleven chaplains for whom specific appropri-
     ation was made by other provisions of this Act (at
     p. 3548) plus four others on part-time and full,-time
     basis who were paid out of another fund.
   10Line item appxoprititions are made fox one chaplain in
     each of the following institutions:   tuberculos,is has.-
     pital, p. 96; orphans home, p. 87: Confederate Home,
     P- '71: epileptic colony, p. 85: feeble minded colony,
     p. 94; juvenile training school, p. 90; and one chap-
     lain in each of the five insane 'hospitals, p. 73, 77,
     80, 82 and 102.
   11Line
      ,. item appropriations are made for one chaplain in
     each of flf.teen state institutions as follows:
                            -6147-
Ron. Joe Resweber, page 8      (M-1255)



     The long continuous history of chaplains in the state
chest hospitals (formerly tuberculosis hospitals) is set forth
in the letter to us from the Medical Director in the Texas
State Department of Health in charge of those hospitals from
which we quote:

          "I feel that the presence of a chaplain on
          the staff of our State Chest Hospitals is
          an important item in therapy.

          "The science of Pastoral Medicine is of
          proved value in the treatment of patients
          in hospitals, particularly long term
          patients such as those suffering with
          tuberculosis.

          "In the case of the seriously ill patient
          and the highly distraught relative, the
          chaplain is essential to psychologically
          preserve calm and to facilitate indicated
          treatment to the patient. Medical science
          well knows that peace of mind is a most
          effective adjunct to medical management.

          "Chaplains have been an integral part of
          the staffs of our chest hospitals since
          the hospitals' inception. A chaplain was



      tuberculosis hospital, p. 976: school for the blind,
      p. 970; correctional school for boys, p. 975; cor-
      rectional school for girls, p. 972; and one chaplain
      in each of the ,three orphans homes, p. 964, 966, and
      967; one chaplain in each of the six mental hospitals,
      pgs- 946, 949, 952, 954, 957 and 960; one chaplain at
      ,theAustin State School, p. 941; and one chaplain at
      the Abilene State Hospital, p. 944.




                            -6148-
Hon. Joe Resweber, page 9     (M-1255)



          a member of the staff of the old McKnight
          Hospital when it was first founded on
          July 4, 1912. Since that time all of our
          hospi.tals have had chaplains on, their
          staffs who have performed and continue to
          perform a most important part in the treat-
          ment of our long term tuberculosis cases."

     The Chief of the Medical Service of one of the large
priva.te hospitals in Texas concurs in support of the chap-
laincy program in medical hospitals,   He states (in part):

          II
           . . . I can say without hesitation that
          patient care is greatly improved if there
          is an active chaplain program that is inte-
          grated with the nursing and physician ac-
          tivities. The chaplain is frequently able
          to communicate far better with the patient
          and the family than the nurse or physician.
          Also, not infrequently, the chaplain spends
          time in communicating which the nurse and
          the doctor may not spend . . . .I'

     A leading surgeon in the Texas Medical Center in Houston
corrobora,tes this fact observing that "There are many social
and religious aspects that pertain to illness which are best
handled by persons in the chaplaincy service . . . .'I

     The uncontroverted facts presented to us are that chap-
lains had been employed in a number of the state medical
hospitals for many years prior to the adoption of Article
IX, Section 4 to the Texas Constitution in 1954 and enact-
ment of the enabling legislation (Art. 4494n. Sec. 1) in the
same year, and that the legislature had made specific approp-
riations for their services. This long continued legislative
construction and practice and universal construction and ac-
quiescence by all state officers and the public should not
and will not 'be declared illegal by the Attorney General, in
the absence of a controlling decision of our cousts, unless
it is clearly unlawful.   53 Tex.Jur.2d 257-267, Statutes,



                            -61149-
Hon. Joe Resweber, page 10      (M-1255)


Sec. 176-178; Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896
(1937); Central Power & Light CO. v. State, 165 S.W.2.d 920,
924-925 (Tex.Civ.App. 1942, error ref.). This long continued
construction was specifically authorized by enactment of the
general substantive law, the Position Classification Act of
1961 (Art. 6252-11). This Act specifically provides for the
position of chaplain as a state employee, Every general
appropriation act since has made appropriation for this class
of employee in the state's medical hospitals-l2

     We interpret this long uninterrupted legislative his-
tory to evince the legislative intent and declaration that
the service of chaplains is by it considered as a necessary
service incident to treatment of medical patients in state
hospitals.  The professional usage of chaplains by the medi-
cal profession in the treatment of medical patients in these
hospitals is also without controversy before us. This es-
tablished intent and recognized practice existed long be-
fore the adoption in 1954 of both the constitutional and
statutory provisions under which your hospital district
operates and must be considered in interpreting these laws.
This principle of construction has been stated as follows:

         II
          . . . the courts have declared that a
         statute will be construed in the light
         of contemporaneous history, and that
         the circumstances of business usage,
         and the life and habits of the people
         at the time of the passage of the act
         will be considered. Judicial notice



    12
      Art. 681313, V.C.S., and the several general appropriations
       acts. See Footnotes 6 and 7, supra. The appropriation
       acts usually authorize chaplains under a general heading
       such as "Salaries of Classified Positions".  For example,
       see the appropriation to the East Texas Chest Hospital,
      being Item’6  at p. II-6 of the current general appropriation
      act (Acts 62nd Leg,, 3d C-S., 1972, S-B. 1, Journal
      Supplement).


                             -6150-
Hon. Joe Resweber, page 11       (M-1255)


          will be taken of conditions of common
          notoriety existing at the time of the
          passage of an act. And conditions and
          facts then existing and within the
          knowledge of the legislature, and the
          history of the subject matter involved,
          are properly considered in ascertain-
          ing the meaning and object or the scope
          and effect of an act." 53 Tex.Jur.2d
          251-252, Statutes, Sec. 172.

     The law seems to be settled to the effect that a county
hospital district, such as Harris County Hospital District,
created and operating under Article IX, Section 4 of our
State constitution and Article 4494n, Section 1, is a pub-
lic body which expends public funds for a governmental
function. Ritch v. Tarrant Countv Hospital District 476
S.W.2d 950 (Tex.Civ.App. 1972, aff. 480 S.W.Zd 622, Tex.
Sup. 1972): Rodrisuez v. Medical Arts Hospital, 437 F.2d
1204 (5th Cir. 1971): Arseneau v. Tarrant County Hospital
District, 408 S.W.2d 802 (Tex.Civ.App. 1966, error ref.
n.r.e.). The status of Harris County Hospital District
with reference to expenditure of its public monies for the
chaplain programs in question appears to be wholly anala-
gous to the legal status of the State in expenditure of
state monies for its chaplain programs.

     We hold tha,t the constitutional and statutory provisions
under which the Harris County Hospital District was created
and operates authorize the employment by the District of
chaplains and payment of their salaries from the public
funds of the District.

     We consider now whether the establishment clause of the
First Amendment to the Constitution of the United   tates13
                                                  iii
or Article.1, Section 7 of the Texas Constitution     are a



     13
       See Footnote 1, supra
     14See Footnote 2, supra


                             -6151-
Hon. Joe Resweber, page 12     (M-1255)



bar to the chaplain programs under consideration,   This is
the field of church-state relations,   No case of any court
or other legal aut,hority has been found or called to our
attention which is controlling on this question.

     At the outset of this consideration we note that
chaplains have been an integral class of federal employee
of the National Home for Disabled Volunteer soldiers (now
an agency of the Veterans Administration) since the year
1866 and of the Veterans Administration medical and other
hospitals since their inception, All doubts concerning
the constitutionality of acts of the Legislature, and of
the executive and administrative interpretations given
those acts, must be resolved, if possible, in favor of
their validity,   53 Tex.Jur.2d 227, Statutes, Sec. 158.

     The chaplain programs under consideration appear to
have a secular legislative purpose: their principal or
primary effect appears to neither advocate nor inhibit
religion and they do not appear to foster "an excessive
governmental entanglement" with religion, Lemon v.
Kurtzman, 403 U.S. 602, 612-613 (1971) and Tilton v.
Richardson! 403 U.S. 672 (1971). The chaplaincy prog-
rams of the State appear to be within the scope of the
accanmcdation allowed under the establishment clause by
McGowan v. Marvland, 366 U.S. 420 (1961); Maryland Law
Review, Vol. 24 (No. 4, Fall 19641, page 377, "Military
Chaplains - A Constitutionally Permissible Accommodation
Between Church and State.* We hold that these enact-
ments of the Legislature and acts of the several state
agencies and institutions named in the several general
appropriation acts considered in this opinion in employ-
ing chaplains and maintaining a chaplain training program
are valid under the First Amendment to the United States
Constitution.

     We also are of the opinion that these enactments and
acts are valid u,nder Article I, Section 7 of the Texas
Constitution which reads:




                             -6152-
Hon. Joe Resweber, page 13      (M-1,255)



         "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 purposes."

The only relevant case which we find which construes this
Section is Church v. Bullock, 104 Tex. 1, 109 S-W. 115
(1908). The court held that voluntary religious type
exercises in the public schools did not violate this
Sectjon. Our opinion is that the services of a chaplain
and the type ,of chaplain training program approved by
the Legislature is directed toward aid of individuals
who desire this type of aid and is not ". . . for the
benefit of any sect, or religious society, theological
or religious seminary: . . . .'I

     Your second question asks whether Harris County Eos-
pita1 District may legally employ qualified religious
persons in training positions which lead to qualifications
as hospital chaplains. We are not advised of the nature
of the training program proposed. However, if it is
legally similar to the training program for chaplains
which has been carried out in the state institutions and
which apparently has been approved by the Legislature,
then your program also would be within the legislative
intent for providing full medical aid and hospital care
to the indigent and needy persons residing in your hos-
pital district. We will assume that the training prog-
ram will be administered in conformity to the consti-
tutional guidelines hereinabove discussed and that the
program does not contemplate training in religion but
rather training in hospital administration and minister-
ing to the i,ndividual needs of the patients as may be
requested.




                             -6153-
Hon. Joe Resweber, page 14     (M-1255)



                         SUKK&RX
                         -a
          The Harris County Hospital District may
          employ chaplains in its hospitals, since
          the service of a chaplain is a long, well-
          established part of medical and hospital
          care.

                                      very     truly,




                                             General of Texas

Prepared by W. E. Allen
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman

Houghton Brownlee
Ben Harrison
Arthur Sandlin
Wayne Rodgers

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRBDWALEER
Executive Assistant

NOLAWEITB
First Assistant




                             -6154-
