  .     .




                EA                NEY'GENERAL



                         AUSTIN    ~~.TEXAS

                              December       10,   1965


Mr. Jess M. Irwin;       Jr.                 Opinion      No. c-564
Executive   Director
Texas Department of Mental                   RE:    Whether the Texas Board
   Health and Mental Retardation                    of Mental Health and
Box S, Capitol     Station                          Mental Retardation     is
Austin,   Texas 78711                               authorized  to dispose
                                                    of land at the Abilene
                                                    State School under the
                                                    provisions  of Article
Dear Mr. Irwin:                                     3232c, V.C.S.

       In your letter    of November 9, 1965,          you requested   an
Attorney   General's    Opinion with reference          to the following
question:

           "May the new Texas Board of Mental Health
      and Mental Retardation    under the procedures
      outlined   in Senate Bill  133 (Art. 3232c, V.C.S.)
      . . . dispose   of land at the Abllene   State
      School and convey good and marketable     title to
      such land?"

       As pointed   out in your letter,    Section lofsaid    Article
3232~ authorize8     the Board of Texas State Hospitals       and
Special    Schools,  which was abolished    effective   September 1,
1965,   In its discretion    to determine   land in excess    of the
needs of th,e operation     of the Abilene   State School and
thereafter     sell same for cash, as follows:

           "The Board for Texas State Hospitals        and
      Special    Schools   is hereby authorized    in Its
      discretion     to determine   land in excess   of
      the needs of the operation        of the Abilene
      State School and thereafter        sell and convey
      for cash any land which it has determined           Is
      no longer needed for the groper operation           of
      the Abilene     State School.

       Sections 2 through 5 of said Article        3232~ provide
respectively,   in connection     with any sale of excess        land
of the Abllene    State School,    for certain    notice   to the
State Highway Department and Board of Control,            advertis-
ing and receiving     bids, certain   reservations      of royalty

                                    -2721-
                                                                        .          .




Mr. Jess      M. Irwin,   Jr.,    page 2 (c-564)



interests,   and execution  of deeds by “the chairman of
the Board for Texas State Hospitals     and Special   Schools
or a member of the central    office staff,  authori5ed    by
an appropriate   resolution  of the Hospital  Board.

       The Mental Health and Mental Retardation     Act (H.B.
 - ch. 67, Acts of the 59th Leg., R.S.,
#3,                                           19651, which
abolishes   the Board for Texas State Hospitals-and     Special
Schools   and creates   the Texas Board of Mental Health and
Mental Retardation    to “formulate  the basic and general
policies”   for the Texas Department of Mental Health and
Mental Retardation    formed under the Act, became effective
on September 1, 1965.

        Said Act provides    for election      of a Chairman and
appointment     of a Commissioner     by the Board and for ap-
pointment     of two Deputy Commissioners        by the duly ap-
pointed     Commissioner.    The  responsibility      for the ef-
fective     administration   of the programs and services          of
the Department is given to the Commissioner              by Section
2.12(a)     of the Act.    Said Act further      provides   for a
staff    under the direction     of the Commissioner       and Deputy
Commissioners.

          Said Act does   not    provide   for     the    repeal   of       said
Article       3232~.

        One of the stated purposes        of said Act           is ‘. . .
to provide     for the effective      administration            and coordina-
tion of mental health services          at the State            and local
levels,    and to provide,     coordinate,     develop,           and improve
service:    for the mentally      retarded   persons           of this State
. . . .

      Said Act contains   no clear  language specifically
authorizing    the sale and conveyance     of excess   land of the
Abilene   State School by the newly formed Texas Department
of Mental Health and Mental Retardation,        as Is found in
said Article    3232c, which has apparently     raised    a question
in your mind regarding     said Department’s    authority    to make
such sales and convey marketable      title.

          The following   rule    has been       long    established         in    this
State:

              “When an old law is superseded  by a new
          one, and the latter   is vague and indefinite
          in any of its provisions,   it is not improper
          to refer  to the former to settle  the meaning

                                      -2722-
Mr. Jess    M. Irwin,   Jr.,        page    3 (c-564)



       of such provisions.'   S. D. Steadman v.
       Merchants and Planters  Bank of Sherman,
       69 Tex. 50, 6 S.W. 675 (1887).

        Nothing In the Mental Health and Mental Retardation
&& evidences      any intent  to change the provisions   of
Article    3232~.   On the contrary,    Section 2.16(a) of
said Act providesin       part as follows:

           "All powersj duties,    and functions     . . .
       relating   to the administration     of mental
       health   or mental retardation    services,
       previously   vested in the Board for Texas
       State Hospitals    and Special   Schools    . . .
       are transferred    to the Texas Department
       of Mental Health and Mental Retardation."

       Similar  language       is    also    included   in   the   caption   to
the   Act, as follows:

           "AnAct.         . transferring     to the new
       department    certain    powers,   duties,    functions,
       property,    records,    and personnel      of the r . .
       Board for Texaf State Hospitals            and Special
       Schools.    . . .

       If   said Act, by the aforementioned          language of Section
2.16(a.)   does not expressly       clothe   the Texas Department of
Mental Health and Mental Retardation            with the power pre-
viously     gfven to the Board for Texas State Hospitals            and
Special    Schools   by said Article       3232~ to sell    and convey
excess    land of the Abilene       State School,      then clearly   the
implication      of such power is contained        in the quoted lan-
guage of both Section       2.16(a)     and the caption;      and the
courts    have held in this State that "that which is Implied
in a statute      is as much a part of it as what .is expressed."
McCamey v. Hollister       Oil Company, 241 S.W. 689 (1922),
aff.   274 S.W. 562 (1925).

      Furthermore,    by considering     Section   2.16(b)    of said
Act, which provides      that "all   land, buildings,      facilities,
and property     . . . used by the Board for Texas State
Hospitals    and Special    Schools  . . . are transferred         to
the T3xas Department of Mental Health and Mental Retarda-
tion,     and Section   2.17 of said Act which provides           that
"the Department shall have exclusixe           management and control
of...       the Abilene    State School,     the legislative       intent
in enacting    the Mental Health and Mental Retardation              Act
appears    to embrace a transfer     of authority     under said

                                           -2723-
Mr.   Jess   M. Irwin,   Jr.,   page 4 (C-564)



Article     3232~ to the Texas Department of Mental Health
and Mental Retardation.          Texas courts      have consistently
given effect      to legislative     intent    and have held that,
in determining      legislative    intent,      a court   "should not
look alone to any one phrase,           clause,    or sentence     of
the act,     but to the entire     act; and this includes          cap-
Elfo;;lCand)     the body of the act.       . . .       Reed v. City
          f  223  S.W.2d   247,  (Tex.Civ.App.,       1949,   error ref.

      Therefore,  the answer to your question     is determined
 not only from the express   words of Sections    2.16(a)  and
 (b) and 2.17 and the other express    provisions    and caption
 of the Mental Health and Mental Retardation      Act but also
 (1) from what is implied   thereln,  and (2) by reference
 to the powers of the former Board for Texas State Hospi-
.tals and Special  Schools  under said Article    3232~.

       It follows    that the newly created     Texas Board of
Mental Health and Mental Retardation         may sell   and convey
for cash excess       land of the Abllene   State School under
the provisions      of Article   3232~ and, with reference      to
such sales,     authorize    by appropriate  resolution   the exe-
cution    of deeds to such land by the Commissioner        in ac-
cordance    with the authority     therein  granted to the
abolished    Board for Texas State Hospitals        and Special
Schools,    which authority     has been transferred    to said
Texas Department of Mental Health and Mental Retardation
by virtue    of the Bental Health and Mental Retardation
&&.



             The Board of Mental Health and Mental
             Retardation    created    by the Mental
             Health and Mental Retardation         Act (H.B.
             #3, ch. 67, Acts of the 59th Leg.,          R.S.
             1965)   is authorized     under and by virtue
             of said Act in its discretion         to deter-
             mine land in excess       of the needs of the
             operation   of the Abilene      State School
             and thereafter     sell   and convey for cash
             any land which it has determined          is no
             longer needed for the proper operation
             of the Abilene     State School and, with
             reference   to such sales,      to authorize
             by appropriate     resolution    the execution
             of deeds to such land by the Commissioner
             in accordance     with all of the provisions
             for sale of such land contained         in Article
             3232~ (V.C.S.).
                                   -2724-
or.   mess M. Irwin,   Jr.,   page 5 (c-564)



                                  Very truly     yours,

                                  WAGGONER CARR
                                  Attorn y General        of   Texas
                                         1




                                     Assistant    Attorney      General


CDJjr/vmo

APPROVED:

OPINION COMMITTEE

W. V. Geppert,    Chairman

Milton Richardson
David Longoria
Malcolm Quick
Phlllip Crawford

APPROVEDFOR THE ATTORNEYGENERAL
By:  T. B. Wright




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