                                 OP TEXAS
                             AURTIN.   TEXAS           78711




                                   November       2,   1973


 The Honorable James Peavy,     hi, D.                 Opinion     No.   H-   143
 Commissioner   of Health
 Texas State Department   of HeaAth                    Re:     The constitutionality    of
‘Austin, Texas 78756                                         State participation   in a
                           :                                 federal supplemental food
                                                             program for pregnant and
                                                             lactating women, infants
Dear   Dr.   Peavy:                                          and children.

    You have asked us for an opinion concerning the authority of
the Texas State Department   of Health to receive and distribute federal
funds pursuant to the Child Nutrition Act (42 USC 137; et seq. ) as
amended by Public Law 92-433, for the purpose of providing a special
supplemental  food program for women,     infants and children in this
State.

    You advise    us that:

         “The Comptroller      of Public Accounts has ques,tioned
         whether or not the disbursement       of the funds herein
         described would violate Sections 50 and 51 of Article
         3 of the Constitution    of the State of Texas.   Therefore,
         the following question is ‘submitted for your consideration.

              “In the event that federal funds are made available
         to this Agency,   may these funds be lawfully expended
         for the purposes herein described?”

     The United States Department      of Agriculture Regulations   governing
the disbursement    and use of these funds (See 38 Federal Register 18447-
18451) show that basically   this program is designed to distribute nutri-
tional food to pregnant or lactating women, and to children under age 4
who live in low income areas and are part of low income groups considered
to be “at nutritional risk”.    It is also a mijor object of the program to
collect and evaluate medical data which will medically      identify benefits
of such a food program.



                                       p.   677
.   -




        The Honorable    James   Peavy,   M. D.,     page 2   (H-143)




             The requirements    for eligibility of local agencies are that the
        agency provide health service to residents       of an area. in which a
        substantial proportion of the persons have low incomes;          that is,serve
        a population of women,     infants or children which is “at nutritional
        risk”; that its staff include competent professionala;       that it.have
        personnel   and expertise and equipment necessary        for performing     the
        tests; and that it maintain adequate medical records.

            It is our understanding    that this program will be financ ed entirely
        with federal funds which will be deposited in the State Treasury fo
        be disbursed   in accordance    with your directions    and in accordance
        with the above referenced     regulations.    No matching State fund,s are
        involved.   Your authority to participate     in this program emanates
        from Article 4418f, V. T. C. S. , which provides:       “It shall be lawful
        for the State Department     of Health to accept donationa andcontributions,
        to be expended in the interest of the public healthand       the enforcement
        of public health laws. ”

            The appropriation   of the money received is covered by 5 19, Article  5,
        House Bill 139, Regular Session,    63rd Legislature  (T,he Appropriations
        Act for fiscal 1974 and 1975) which generally provides that State agencies
        rece’iving federal funds shall use said funds for the purposes intended.
        Compare Attorney General Opinion C-530 (1965).

             You advise us that the Comptroller    assigns his reluctance   to $ $ 50
        and 51 of Article  3 of the Texas Constitution.    Section 50 prohibits the
        giving or lending of the credit of the State for private purposes.     We do
        not think it is controlling since the credit of the State is not being given
        or loaned in connection with this program.

            Section 51 provides,   “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.  ”

            It is well settled that this prohibition does not apply to the use of
        public funds for public purposes.     State v. City of Austin, 331 S. W. 2d 737
        (Tex.   1960). Compare Attorney General Opinions C-464 (1965) and M-274
        (1968).




                                             p.    678
The Honorable   James   Peavy,   page 3    (H-143)




     It seems clear to us that a food program of this type for indigent
and needy children and pregnant and lactating women, together with
the compilation   of relevant data as to the results of this prog~ram,
constitutes  a public purpose.   See Attorney General Opinion No. C-584
(1966) in which this office held that 5 51 of Article 3 would not prohibit
the use of federal and matching State funds for the establishment      of
community centers to provide free health services       to indigent persons.

    Accordingly,     the answer to your question is that, in the event
federal funds ares made available to your department pursuant to the
Child Nutrition Act of 1966 as amended,     for the purposes discussed
hereinabove,     such funds may be lawfully expended for those purposes.

                           SUMMARY

            The use of federal funds deposited in the State
        Treasury    for expenditure at the election of the State
        Health Department     under the Federal Child Nutrition
        Act of 1966, as amended,     for the purpose of providing
        a supplemental    food program for pregnant and lactating
        women,    infants and children,   is not prohibited by any
        provision   of the Texas Constitution.

                                          Very   truly yours,




                                          Attorney   General    of Texas

        VED:




DAVID M. KENDALL,        Chairman
Opinion Committee




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