                    November     12, 1971


Honorable David Wade, M.D.             Opinion No. M-995
Commissioner
Texas Department of Mental Health      Re:   Whether the Texas De-
   and Mental Retardation                    partment of Mental
Box 12668, Capitol Station                   Health and Mental Re-
Austin, Texas 78711                          tardation or the State
                                             Board of Control is
                                             authorized to contract
                                             with the Texas Depart-
                                             ment of Corrections
                                             for construction of a
                                             dam at the Leander Re-
                                             habilitation Center, a
                                             facility of the Texas
                                             Department of Mental
                                             Health and Mental Re-
Dear Dr. Wade:                               tardation.

          Your request for an opinion reads in part as follows:

          "This Department is interested in construct-
     ing a dam at one of its facilities, the Leander
     Rehabilitation Center, to create a lake to be
     used for the purposes authorized in Article 3263f,
     Vernon's Annotated Civil Statutes. The Texas De-
     partment of Corrections has the capability of per-
     forming such a construction project for this De-
     partment and is agreeable to do so provided same is
     legally authorized.   It would appear that Article
     634-l/2, V.A.T.S., would have authorized the State
     Board of Control at the time it was responsible for
     the eleemosynary institutions of this State to have
     contracted with the Texas Department of Corrections
     for the use of equipment, materials and the labor of
     trusty State convicts to be used in connection with
     the construction of a project such as is proposed at
     the Leander Rehabilitation Center. The powers and

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Hon. David Wade, M.D., page 2      (M-995)




    duties of the State Board of Control with respect
    to eleemosynary institutions were transferred to the
    Board for Texas State Hospitals and Special Schools
    pursuant to Article 317433, Section 2, V.A.T.S.
    Such powers are presently vested in the Texas
    Department of Mental Health and Mental Retarda-
    tion under the terms of Article 5547-202, Section
    2.16(a), V.A.T.S.

          "Wherefore, your opinion and advice with re-
     spect to the following questions is respectfully
     requested:

          “1.  Is the Texas Department of Mental Health
     and Mental Retardation authorized to contract with
     the Texas Department of Corrections for the use of
     equipment, materials  and the labor of trusty State
     convicts for the construction of a dam at the
     Leander Rehabilitation Center?

          “2 .  Is the State Board of Control authorized
     to contract with the Texas Department of Corrections
     for the use of equipment, materials  and the labor
     of trusty State convicts for the construction of a
     dam at the Leander Rehabilitation Center, a facility
     of the Texas Department of Mental Health and Mental
     Retardation?"

          Article 634-l/2, Vernon's Civil Statutes, provides:

          "The Board of Control is hereby authorized to
     make contracts with the State Prison Board for the
     purchase of supplies, equipment and materials for
     use by other State institutions, including food,
     supplies, clothing, shoes, metal utensils and ap-
     pliances, furniture and fixtures, and any and all
     other supplies or agricultural or manufactured
     products, binding, other labor for use of the State
     in any of its Departments, Commissions, Boards, Of-
     fices, or eleemosynary or educational institutions,
     including any and all supplies, equipment, material
     or labor purchased or used by, or for the State,
                        -4853-
Hon. David Wade, M.D., page 3       (M-995)



     under the direction of the Board of Control."

            Section 2 of Article 317433, Vernon's Civil Statutes,
provides:

          "Sec. 2. Upon the effective date of this
     Act, the Governor shall appoint the Board pro-
     vided in this Act and the Board shall proceed to
     organize as required by Section 5 of this Act and
     employ the Executive Director and such other per-
     sonnel necessary to carry out the provisions of
     this Act. Effective September 1, 1949, the con-
     trol and management of, and all rights, privileges,
     powers, and duties incident thereto including
     building, design and construction of the Texas
     State Hospitals and Special Schools which are now
     vested in and exercised by the State Board of
     Control shall be transferred to, vested in, and
     exercised by the Board for Texas State Hospitals and
     Special Schools. Provided, however, that the Board
     of Control shall continue to handle purchases for
     such institutions in the same manner as they do
     for other State agencies."

          Section 2.16 of Article 5547-202, Vernon's Civil Stat-
utes, provides in part:

          "Sec. 2.16.   (a) All powers, duties, and
     functions relating to the commitment, care, treat-
     ment, maintenance, education, training, and re-
     habilitation of mentally ill or mentally retarded
     persons, or relating to the administration of
     mental health or mental retardation services, pre-
     viously vested in the Board for Texas State Hospitals
     and Special Schools and in the Division of Mental
     Health and the Office of Mental Health Planning of
     the State Department of Health, are transferred to
     the Texas Department of Mental Health and Mental
     Retardation."

            We note that the provisions of Article 634-l/2,

                           -4854-
Hon. David Wade, M.D., page 4     (M-995)




Vernon's Civil Statutes, relate to the general power of the
Board of Control to purchase supplies, equipment, etc., for
agencies of the State generally, rather than relating to the
care and treatment of mentally ill and mentally retarded per-
sons. Furthermore, its provisions do not relate to the control
and management of the Texas State Hospitals and Special Schools.
It is therefore our opinion that the powers of the Board of
Control provided in Article 634-l/2 were not transferred to
the Texas Department of Mental Health and Mental Retardation.

          In Attorney General's Opinion O-5038 (1943) it was
held that the provisions of Article 634-l/2 refer only to the
State Board of Control and do not give any other board or
agency of the State the powers therein contained.  It was
further held that the provisions of Article 2647, Vernon's
Civil Statutes, providing for the general powers of the Board
of Regents of the State Teachers Colleges to manage and control
all State Teachers Colleges, did not authorize such board to
make a contract with the State Prison Board for the construction
of proposed buildings.

          In view of the foregoing, your first question is
answered in the negative, and you are advised that the Texas
Department of Mental Health and Mental Retardation is not au-
thorized to contract with the Texas Department of Corrections
for use of equipment, materials and the labor of State con-
victs for the construction of a dam at the Leander Rehabili-
tation Center.

          Article 634-l/2 is a part of Chapter 3 of Title 20
of the Revised Civil Statutes of Texas, 1925, as amended, which
Chapter relates to the powers and duties of the Purchasing
Division of the Board of Control. None of the provisions of
Article 634-l/2 authorize the Board of Control to enter into
construction contracts. The contract in question is a con-
struction contract, that is, one for the construction of a
dam at the Leander Rehabilitation Center.  It is therefore
our opinion that Article 634-l/2 is not applicable to such
construction work. You are accordingly advised that the State
Board of Control is not authorized to contract with the Texas
Department of Corrections for the use of equipment, materials

                        -4855-
I   .




        Hon. David Wade, M.D., page 5       (M-995)




        and labor of State convicts for the construction of a dam at
        the Leander Rehabilitation Center.

                                SUMMARY

                  Neither the Texas Department of Mental Health
             and Mental Retardation ncr the State Board of
             Control is authorized to contract with the Texas
             Department of Corrections for the construction of
             a dam located at the Leander                Center.




        Prepared by John Reeves
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Kerns Taylor, Chairman
        W. E. Allen, Co-Chairman
        Pat Bailey
        Harriet Burke
        Linward Shivers

        SAM MCDANIEL
        Staff Legal Assistant

        ALFRED WALKER
        Executive Assistant

        NOLA WHITE
        First Assistant




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