                           October 7,        1970




Honorable David Wade                   Opinion No. M- 704
Commissioner
Texas Department of Mental Health      Re:    What State agency Is
   and Mental Retardation                     authorized to complete a
Box "S", Capitol Station                      Certificate of Need for Nursing
Austin, Texas 78711                           Home, FHA Form 2576, to the
                                              Federal Housing Commissioner,
                                              and related questions?

Dear Mr. Wade:
      You ask whether your Agency, or any other State Agency, has
authority to certify to the Federal Housing Commissioner the
existence of a need for a nursing home of a stated number of beds
to be located at a designated place In this State, by the execution
of FHA Form No. 2576.
      We do not find any authority, express or implied, for any
agency of this State to make such certification.
      Nursin homes are licensed and operated under the provisions
of Article 4&42c, Vernon's Civil Statutes. Section 4 of this
Article reads, in its relevant part, as follows:
           "An application for a license shall be made to the
           Licensing Agency upon forms provided by it and con-
           taln such information as the Licensing Agency re-
           quires which may include affirmative evidence of
           ability to comply with reasonable standards, rules
           and regulations as are lawfully prescribed here-
           under ...
           "Upon receipt of an application for a license the
           Licensing Agency shall issue a license If upon
           inspection and investigation it finds that the ap-
           plicant and facilities meet the requirements estab-
           lished under this law ..* Any increase in the bed
           space above the maximum approved is subject to
           approval by the Licensing Agency and subject to
           additional fee ...'

                                    -3404-
Hon. David Wade, page 2 (M- 704)


      The "Licensing Agency" is the State Department of Public
Health. Article 4442c, Section 2(d).
      Section 7 of this Article authorizes the Department of Public
Health to adopt and enforce minimum standards relating to the
physical facilities, personnel, and diet of the residents of nur-
sing homes.
      We do not find in either of the above quoted statutory pro-
visions, or any other Legislative enactment, any express or implied
authority for the Department of Public Health, or any other State
Agency, to certify to a need for a nursing home or to refuse such
certification on the basis of a finding that such a need does not
exist. No State Agency, by virtue of its duties or responsibilities,
Is required or authorized to determine the need for nursing homes
In this State. In licensing  such homes, the State Department of
Public Health has no authority to grant or refuse to grant a
license based on whether the need for such homes exists.
      Neither State Agencies nor public officers may exercise
powers not expressly conferred or necessarily implied from the
powers so conferred. They cannot legally perform acts not authorized
by existing laws. 47 Tex.Jur. 2d 139-140, Public Officers, Section
196; Bryan v. S;ndberg, 5 Tex. 418 (1849); Anderson v. Houchlns,
99 S.W 2d 1029 Tex.Civ.App. 1936, no writ); and Edwards v. Murphy,
256 S.W.2d 470 Tex.Civ.App. 1953, err. dism.).

      In view of the foregoing, we cannot properly hold that any State
Agency has been designated to determine "needs" for a particular
nursing home. Consequently, it must follow that there is a lack of
authority of any State Agency to execute FHA Form 2576, which is a
"Certificate of Need for Nursing Home."
      It will be necessary for the Legislature to grant such
authority in the event it desires to provide for such a responsibility.
                            SUMMARY
          No Agency of this State Is authorized to execute
          FHA Form 2576 by officially certifying that a need
          exists for a nursing home licensed and operated pur-
          suant to Article 4442~.
                                     YoyA   very truw,




                                   -3405-
Hon. David Wade, page 3 (M- 704)



Prepared by E. L. Hamilton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE:
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Jack Goodman
Bob Darden
James McCoy
James Quick
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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