                       The Attorney                     General of Texas
                                                December 18, 1978
JOHN L. HILL
Attorney General


                   Honorable John J. Kavanagh, M.D.                        Opinion No. H- 1290
                   Commissioner
                   Texas Department   of Mental Health                     Re:    Deposit and use of funds
                     and Mental Retardation                                received   for genetic counseling
                   P. 0. Box 12668                                         services.
                   Austin, Texas 78711

                   Dear Commissioner          Kavanagh:

                          You have requested our opinion regarding the deposit and use of funds
                   for genetic counseling services.  Section 2.25 of article 5547-202, V.T.C.S.,
                   authorizes  the Texas Department    of Mental Health and Mental Retardation
                   to

                                    charge for genetic counseling services provided under
                                    the authority  of this Act at a rate not to exceed the
                                    actual cost of providing such services.     The proceeds
                                    from such charges shall be retained and utilized by the
                                    department    for the continued     provision   of such
                                    services.

                   You state that the Denton State School, a department          facility, receives funds
                   under section      2.25 from community        mental   health   centers,   from other
                   departmental     facilities, and from individuals.   Genetic counseling services are
                   generally    provided on an outpatient      basis.   You ask whether section 2.25
                   empowers the Denton State School to deposit funds received thereunder              in a
                   local depository.

                          Article     3179, V.T.C.S.,     applicable   to the Denton State    School, inter alia,
                   provides:

                                       AR funds       of every     character      received    by or
                                    belonging    to the institutions,         other    than   money
                                    appropriated     for their support from time to time by
                                    the Legislature,    shall as soon as received,      be paid over
                                    to the State Treasurer     by the Board, superintendent        or
                                    other person receiving        them.      The Treasurer      shall
                                    place such sums to the credit of the general revenue
                                    fund.




                                                          P. 5088
Honorable       John J. Kavanagh,       M.D.    -    Page 2     (H-1290    1



It might be argued that article 3179, by requiring the deposit of all such funds in the
State Treasury,    irreconcilably conflicts with section 2.25 of article     5547-202.
Article 3179, however, applies only to unappropriated    funds, and it seems clear that
all moneys collected under section 2.25 are appropriated.

      In section 3h of article II of the current appropriations    act, Acts 1977, 65th
Leg., ch. 872, at 2804, all proceeds from the operation of out-patient     clinics by the
Denton State School are, with a single nonrelevant      exception,    reappropriated    to
that institution:

                    OUT-PATIENT CLINICS. (11 The State agencies named in
                 this Section are authorized          to charge for treatment           and
                 medication     to patients    treated    on an out-patient      basis at
                 rates not to exceed the actual cost.             An additional    charge
                 may be made for medication           dispensed to patients at a rate
                 not to exceed the cost to the State.
                    (2) Proceeds     from the sale of medications              and from
                treatment     are hereby reappropriated         to the respective     out-
                 patient clinics or institutions.
                    (3) As an exception to the General Provisions of this Act
                 relating   to reimbursements        and payments,       it is expressly
                 provided that the moneys received by the Department                      of
                 Mental Health and Mental Retardation              and the Department
                 of Health Resources,       from interagency        contracts    with the
                 Department      of Public Welfare under Title XIX of the Social
                 Security    Act, are to be considered         pay-patient    collections
                 and deposited in the General Revenue Fund.

ln addition,        section    26 of     article     V appropriates   to the relevant    agency
reimbursements         for authorized    services    received from another state agency:

                   REIMBURSEMENTS          AND PAYMENTS.           Any reimburse-
                ments received by an agency of the State for authorized
                services   rendered     to any other      agency     of the State
                Government     . . . are hereby appropriated     to the agency of
                the State receiving such reimbursements          and payments    for
                use during the fiscal year in which they are received.
                   The reimbursements        and payments      received    shall be
                credited . . . to the agency’s current appropriation       items or
                accounts from which the expenditures       of like character    were
                originally made. . . .

        Thus,     outpatient  moneys collected       by the Denton     State   School from
individuals     and from community       mental health centers are reappropriated     to the
 agency by      section 3h of article II of the appropriations    act, while funds received
 from other      departmental facilities   are reappropriated  under both that section and
 section 26     of article V. As a result, since article 3179 has no application    to these




                                                P.    5089
   Honorable   John J. Kavanagh,   M.D.      -   Page 3   (H-1290)



   particular  funds, section 2.25 of article 5547-202 prevails, and the Denton State
   School should retain and utilize funds collected   for genetic counseling services “for
   the continued    provision of such services.”    By deciding that these funds may be
   deposited in a local depository,  we need not decide whether they are considered to
   be “in the state treasury.”

                                          SUMMARY

               The Denton State School is authorized         to deposit funds
               received for genetic counseling services, pursuant to section
               2.25 of article 5547-202, V.T.C.S., in a local depository.




                                             /$i$g~&

cL/y                                                      General    of Texas




   DAVID M-KENDALL,        First Assistant




   Opinion Committee

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                                             P. 5090
