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                        The Attorney                   General of Texas
                                           July        30,    1979

MARK WHITE
Attorney General


                   Honorable John J. Kavanagh, M.D.                  Opinion No. Mw-35
                   Commissioner
                   Texas Department of Mental Health                 Re: Authority of Texas Depart-
                     and Mental Retardation                          ment of Mental Health and Mental
                   P. 0. Box 12668, Capitol Station                  Retardation     to license private
                   Austin, Texas 787R                                mental hospitals.

                   Dear Dr. Kavanagh:

                           The Texas. Department of Mental Health and Mental Retardation is
                   responsible for licensing private mental hospitals fin the. State of Texas.
                   V.T.C.S. art. 5547-88 7 554739.         No person or political sub-division may
                   operate a mental hospital unless licensed by the department.      V.T.C.S. art.
                   5547-88. You inform us that the department has in the past licensed only
                   facilities which fit the traditional concept of a private mental hospital.
                   Your rules for licensing reflect thii practice, since they require a physical
                   plant, services, and staffing similar to those of a general hospital. See e
                   rules 302.03.02.006 (physical plant); 302.03.02.009 (pharmacy or drug-3 room ;
                   302,.03.02.Oll (access      to clinical   pathology    services);  302.03.02.012
                   (availability of. blood bank); 302.03.02.017 (clinical psychological services);
                   302.03.02.021 (medical staff); 302.03.02.027 (nursing staff). You ask whether
                   you have authority to license as a private mental hospital a psychiatric
                   program which has no building in which patients reside. You mention as an
                   example a treatment facility which operates in a camp setting consisting of
                   tents and some community buildings.

                         The Mental Health Code, V.T.C.S. arts.              5547-l through   5547-300,
                   provides in section 5547-2:

                                 It is the purpose of thii Code to provide humane
                              care and treatment       for, the mentally ill and to
                              facilitate   their hospitalization, enabling them to
                              obtain needed care, treatment and rehabilitation. . . .

                   A “mental hospital” is defined as “a hospital operated for the primary
                   purpose of providing in-patient care and treatment for the mentally ill.”
                   V.T.C.S. art. 5547-4(g). The department has broad authority to prescribe
                   rules, regulations  and standards necessary “to insure proper care and




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Honorable John J. Kavanagh, M.D.     -   Page Two     (NW-35)



treatment of patients in private mental hospitals.” V.T.C.S. art. 5547-95. It may license
a private mental hospital only if it “finds that the premises are suitable and that the
applicant is qualified to operate a mental hospital in accordance with the requirements
and standards established by law and by the Department. . . .” V.T.C.S. art. 5547-91(a).

       The statute does not establish specific requirements for the physical plant of a
private mental hospital. Compare V.T.C.S. art. 4437f, SS2(b), (b)(l) (facilities required of
general hospital and special hospital).    The department, as the agency in charge of
enforcing the statute, ~has considerable discretion to fill in the details of its provisions
See Texas State Board of Examiners in Optometry v. Carp, 412 S.W.2d 307 (Tex. 1967).
The rules it promulgates must of course be in harmony with the general objectives of the
statute, see Gerst v. Oak Cliff Savings & Loan A&n, 432 S.W.2d 702 (Tex. 1968), but those
objectivezelate    to providing proper care and treatment and “suitable” premises, rather
than a particular kind of physical plant. The department’s standards for the care and
treatment of mental patients relate to services, personnel, procedure% equipment,
medication and record keeping as well as to physical facilities

        If a particular institution does not operate in a traditional hospital building but,
fulfills all other requirements for a private mental hospital, and if its premises are
suitable for the proper care and treatment of mental patients, the department would in
our opinion have authority to license it. An administrative agency must of course exercise
its power reasonably, see Fire Department of City of Fort Worth v. City of Fort Worth,
217 S.W.2d ~664 (Tex.T49),         but we cannot say that an order licensing a residential
treatment program as a privates mental hospital would .be unreasonable or an abuse of
discretion merely because the patients did not reside in a traditional hospital building.
The department’s rules at present require a hospital building. If it determines to license a
nontraditional facility, the department would have to promulgate additional standards for I’
“suitable” premises which would encompass a nontraditional setting.

                                      SUMMARY

           The Department    of Mental Health and Mental Retardaticn        has
           authority to license as a private mental hospital a residential
           treatment program which does not operate in a traditional hospital
           building if it complies with departmental    standards for suitable
           premises and for the proper care and treatment of mental patients.




                                               MARK      WHITE
                                               Attorney, General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General



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     Honorable John J. Kavanagh, M.D.       -   Page Three   (Mw-35)




     TED L. HARTLEY
     Executive Assistant Attorney General

     Prepared by Susan Garrison
     Assistant Attorney General

     APPROVED:
     OPINION COMMITTEE

     C. Robert Heath, Chairman
     Martha Allen
     David B. Brooks
     Carla Cox
     Susan Garrison
     Rick Gilpin
     William G Reid
     Bruce Youngblood




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