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                                     January 17, 1966


           Dr. S. II. Frazier
           Commissioner of Mental Health
             and Mental Retardation
           Box S;Capitol      Station
           Austin, Texas      78711
                                              Opinion   Ho.   C-584

                                              Re:   Whether.the establishment      of
                                                    community mental health centers
                                                    pursuant to the provlaitins     of
                                                    Ii. B. Ho.     Acts 59th Legis-
                                                    lature,  192,5, is permissible
                                                    under the Texas Constitution
           Dear Dr. Frazier:                        and related question.
                          We ar$ in receipt of your letter  of recent date
           requesting      an opinion on the questions hereinafter   stated:
                         1. Would establishment    of commkity mental
                  health centers pursuant to the provisions     of
                  Article    3 Of House Bill 3, Acts 59th Legislature,
                  Regular Session,    1965,  be permiesible under the
                  Constitution    of the State of Texas?
                          2. Would the allocation    of financial    grants-
                  in-aid to community centers established         under
                  Article   4 of House Bill 3, Acts 59th Legislature,
                  Regular Seseion,   1965, under the conditions       and
                  rules and regulations    prescribed   by the Act be
                  permissible   under the Constitution     of the State
                  of Texas?
                      Article  3 of Houee Bill 3, Acts of the 59th Legislature,
           Regular Session,   1965, Chapter 67, page 165, provides in Section
           3.01 thereof the following:
                          “Sec. 3.01      (a)   One or more cities,    counties,
                   hospital    districts,     school districts,    rehabilitation
                   districts,     state-supported     institutions   of higher
                   education,     and state-supported      medical schools,     or
                   any combination of these, may cooperate,           negotiate,
                                                   -2817-
Dr. S. H. Frazier, page 2 (C-584)


    and contract with each other through their governing
    bodies to establish and operate a community center.
         (b) As used in this Act, a 'community center'

     my "3)    a community mental health center, which
     provides mental health services; or
          (2)  a community mental retardation center,
     which provides mental retardation services; or
          (3) a community mental health and mental
     retardation center, which provides mental health
     and mental retardation services."
and Section 3.14 provides as follows:
          "Sec. 3.14. A community center may provide
     services free of charge to indigent persons. It
     may charge reasonable fees, to cover costs, for
     services provided to other persons. With respect
     to the collection of fees for the treatment of non-
     indigent persons, it has the same rights, privileges,
     and powers granted to the Texas Department of Mental
     Health and &ntal Retardation." (Emphasis added).
           It thus appears that the community centers which
would be established under Article 3 of House Bill 3, Acts of
the 59th Legislature, Regular Session, 1965, become an agency
of the State of Texas and we can find no constitutional pro-
vision. that would inhibit the establishment of such community
centers for mental health and mental retardation services.
          Your next question concerns the allocation of
financial grants-in-aid to community centers established
under Article 4 of House Bill 3, Acts 59th Legislature,
Regular Session, 1965, under the condition and rules and
regulations prescribed by the Act and If such allocations
would be permissible under the Constitution of the,State of
Texas.
          Section 1 of Article II, House Bill 12, Acts 59th
Legislature, Regular Session, 1965, Chapter 720, Appropriations,
appropriates at page 1705 to the Texas Department of Mental
Health and Mental Retardation $600,000 for the year ending
August 31, 1966 and $750,000 plus unexpended balances for the
year ending August 31, 1967 out of which grants-in-aid to
community centers may be made.
          Article 4.of House Bill 3, Acts 59th Legislature,
Regular Session, 1965, provides as follows:
                              -2818-
Dr. S. H. Frazier, page 3 (C-584)


           “Sec.   4.01.
                       As soon as possible after its
     establishment, a community center shall formulate
     and submit to the Department:
          (1) a copy of the written agreement
     between the participating local agencies;
          (2)  a plan, within its projected
     financial, physical, and personnel resources,
     to develop and make available to the resTdents
     of the region a full range of effective mental
     health or mental retardation services, or both.
          "Sec. 4.02. A community center is eligible
     to receive state grants-in-aid if:
          (1) the population within the region
     served is 100,000 or more according to the
     last preceding federal census; and
          (2) It qualifies according to the rules
     of the Department.
          "Sec. 4.03.  (a)  The Department shall
     make rules, consistent with the purposes,
     policies, principles, and standards provided
     by this Act, establishing the minimum standards
     relating to the amount, quality, kinds, and
     accessibility of services which must be pro-
     vided by a community center in order to
     qualify it for state grants-in-aid.
          (b) The Department shall make rules
     under which a newly established community
     center with a sound plan for the development
     of the full range of services may qualify
     for grants-in-aid although It does not
     presently qualify under Subsection (a) of
     this section.
          (c) The Department shall hold hearings
     on all proposed rules under this section.
     Community centers and local agencies shall
     be given notice and an opportunity to testify.
     Delivery or publication of notice may be
     given in any form which is reasonably calculated
     to give actual notice:
          "Sec. 4.04.  The Department shall allocate
     to the eligible community centers the money
     appropriated to the Department for that purpose.
          "Sec. 4.05.   In determining the percentage
     of the total amount available to be allocated
                              -2819-
Dr. S. H. Frazier, page 4 (C-584)


    to each eligible community center, the Depart-
    ment shall give due consideration to the
    following factors:
          (1) the population of the region served
    by the center;
          (2) the soclo-cultural and economic
    characteristics of the region;
          (3) the rate of mental dlsorders and
    disabilities in the region  as revealed by
    reliable statistics;
          (4) the ability or poten‘tlalability
    of the center to provide comprehensive
    services for all residents of the region; and
          (5) the quality of the center's services
    and the effectiveness of the services in
    terms  of average cost per patient-stay and
    other- relevant indices, or the potential
    quality and effectiveness of the services.
          "Sec. 2. Hospital Board Abolished. The
     Board for Texas State Hospitals and Special
     Schools is abolished. This does not preclude
     the Governor from appointing one or more
     members of that board to the Texas Board of
     Rental Health and Rental Retardation.
          ,1
           . . .
          "Sec. 4. Effective Date. This Act
     takes effect on September 1, 1965.
          II
           . . .M
It will be noted from a careful reading of Article 4 of House
Bill 3, supra, that the Department of Rental Health and Mental
Retardation controls the supervision and operation of such
community centers.
          As your second question concerns whether the allocation
of financial grants-in-aid to community centers established urder
Article 4 of House Bill 3, Acts of the 59th Legislature, Regular
Session, 1965, under the conditions and rules and regulations
prescribed by the Act would be permissible under the Constitution
of the State of Texas, the only section of the Constitution which
we deem necessary to discuss In this opinion, as to whether such
allocations would violate the Constitution, would be Section 51
of Article III, Constitution of Texas, wherein it provides:
                              -2820-
Dr. S. H. Prazier; page 5 (C-584)


          "The Legislature shall have no power to
     make any grant or authorize the making of any
     grant of public moneys to any individual,
     association of individuals, municipal or other
     corporations whatsoever; . . .'
          In speaking of Section 51 of Article III of the
Constitution of Texas, the Supreme Court, in the case of
State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960),   said
3.nparta
          11
           . . . the uurpose of this section . . .
     of the Constitution-is to prevent the application
     of public funds to private purposes; . . . See
     Byrd v. City of Dallas, lltlTex. 28, 6 S.W.2d 738.”
     (Emphasis added).
          It is well settled in this state that when a law
duly enacted is attacked as unconstitutional it is presumed
to be valid and doubts as to its unconstitutionality should
alwavs be resolved in favor of constitutionality, and a
construction will be given, if reasonable, that-will uphold it.
Southern Pine Lumber Company v. Newton County Water Supply
District, 325 S .W .2d 724 (Tex.Civ.App. 1959, err. ref., n.r.e.).
          It thus appears that your inquiry resolves irself
into a question of whether the allocation of financial grants-
in-aid to community centers established under House Bill 3,
Acts of the 59th Legislature, Regular Session, 1965, is within
the meaning of applying “public funds to a private purpose.”
We think that it is not.
          In Attorney General’s Opinion v-1067 (1950), this
office said in part:
           “In determining whether an expenditure of pub-
      lic monies constitutes a gift or a grant of public
      monies, the primary question is whether the funds
      are used for a ‘public1 or ‘private’ purpose. The
      benefit of the State from an expenditure for a
      ‘public purpose’ is in the nature of consideration
      and the funds expended are therefore not a gift
      even though private persons are benefited therefrom.”
          The determination of what constitutes a "public
purpose” for which a State may expend public monies has been
held to be primarily a legislative function, subject to review
by the courts when abused, and the determination of the legis-
lative body of that matter has been held to be not subject to
                               -2821-
Dr. S. H. Frazier, page 6 (C-584)


be reversed except in Instances where such determination Is
palpable and manifestly arbitrary and Incorrect. State ex rel.
McClure v. Ha~erman, 155 Ohio St. 320, 98 N.E.2d 835 (1951).
          It appears from a reading of House Bill No. 3 that
the same was set up primarily for the purposes of carrying out
the provisions of Section 54 of Article XVI of the Constitution
of Texas, which 1s set out as follows:
          "It shall be the duty of the Legislature
     to provide for the custody and maintenance
     of Indigent lunatics, at the expense of the
     State, under such regulations and restrictions
     as the Legislature may prescribe."
          Maintenance by the State of hospitals and asylums for
the care and treatment of the insane, being specifically provided
for In the Constitution, Is the performance of a overnmental duty.
(Emphasis added). Welch v. State, 148 S.W.2d 876B(Tex.Clv.App..
1941, error ref.).
          That the maintenance and treatment of indigent, infirm
and mentally defective persons Is a strictly governmental function
cannot be questioned. Commonwealth v. Liveright, 308 Pa. 35,
1.61Atl. 697; Poor District Case, No. 1, 329 Pa. Sup. 390, 197
Atl. 334; Poor District Case, No. 2, 329 Pa. 410, 196 ~tl. 837.
In Re Erny's Estate, 12 Atl.2d 333, Pa. Sup. 1940, p. 335.
          It Is noted In reading Section 3.14, supra, that a
community center may provide services free of charge to indigent
persons and that It would charge reasonable fees to cover costs
for services to other persons.
          It therefore appears that services would not be given
to individuals that were able to pay for treatment.
          Therefore, you are advised that Section 4 of House
Bill 3, Acts 59th Legislature, Regular Session, 1965, is not
in violation of Section 51, Article III, Constitution of the
State of Texas. Our attention has not been directed to any
provision of the Constitution prohibiting the carrying out of
a program as provided for in House Bill 3, supra, and therefore
you are advised that Sections 3 and 4 of said House Bill 3,
supra, are constitutional.
                             -2822-
Dr. S. H. Frazier, page 7 (C-584)


                          SUMMARY
          1. Establishment of community health centers
     pursuant to the provisions of Article 3 of House
     bill 3, Acts of ihe 59th Legislature, Regular
     Session, 1965, is permissible under the Constitution
     of the State of Texas.
           2. Allocation of financial grants-in-aid to
     community centers established under House Bill 3,
     Acts of the 59th Legislature, Regular Session,
     1965,  and under the conditions, rules and regulations
     prescribed by the Act would not violate Section 51
     of Article III of the State Constitution.
                                    Yours very truly,
                                    WAGGONER CARR
                                    Att

                                    By:
                                          Assistant
JHB:sj
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Ivan w111isms
N. Grady Chandler
J. Arthur Sandlln
APPROVEDMIR THEATTORNRY     GRNBRAL
BY: T. B. Wright




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