             THE    ATTORNEY        GENERAL
                       OF   TEXAS


                       September 15, 1988




W. 0. Shultz II                     opinion No.   J&j-953
General Attorney and
Associate General Counsel           Re: Circumstances under
The University of Texas System      which a county or public
201 West 7th Street                 hospital or hospital dis-
Austin, Texas 78701                 trict is responsible for
                                    payment for medical services
                                    rendered to patients at M.D.
                                    Anderson Hospital (RQ-1392)

Dear Mr. Shultz:
     You ask whether a county, a public hospital, or a
hospital district is responsible for payment for services
rendered at the University of Texas M.D. Anderson Hospital
and Tumor    Institute   at  Houston   (hereinafter  "M.D.
Anderson").
     M.D. Anderson is ,governed by chapter 73 of        the
Education Code. It is devoted to the "diagnosis, teaching,
study, prevention, and treatment of neoplastic and allied
diseases."   Educ. Code 5 73.102.     Each application for
admission to M.D. Anderson must be accompanied by a written
physician's statement that the patient has, or is suspected
of having, a neoplasm or allied disease.         Educ. Code
s 73.108. Article 3196a, V.T.C.S., which governs hospitals
under the management and control of the Texas Department of
Mental Health and Mental Retardation, is also applicable to
M.D. Anderson, except to the extent of any conflict with
section 73.101 of the Education Code. Educ. Code 5 73.106.
Article 3196a provides, in part:
            Section 1.   Patients admitted to State
         hospitals under the management and control of
         the Texas Department of Mental Health and
         Mental Retardation shall be of two classes,
         to wit:
            Indigent patients:
     J




                               p. 4821
W. 0. Shultz II - Page 2   (JM-953)




          Won-indigent patients;
              oent watients are those who oossess no
       prowertv of anv kind nor have anyone leaallv
       resvonsible for their suvvort. and who are
       unab
       le              U
       shall be suwworted at the exoense of th:
       &&g.
          Non-indiaent vatients     are   those   who
       possess some wrowertv out of which the State
       mav be reimbursed. or who have         someone
       leaallv liable for their suvvort. This class
       shall be kept and maintained at the expense
       of the State, as in the first instance, but
       in such cases the State shall have the right
       to be reimbursed for the support, mainten-
       ante , and treatment of such patients.
           Sec. 2.     Where the   patient has
        sufficient estate of his own, he shall      b"z
        maintained at the expense:
           Of the husband or wife of such person,   if
        able to do so;
           Of the father or mother of such person, if
        able to do so, provided such person is less
        than 18 years old.
           Child support payments for the benefit of
        a patient paid or owing by a parent pursuant
        to a divorce decree or other court order
        shall be considered to be the property and
        estate of the patient, and charges may be
        made against such child support obligations.
        The parent who is obligated to pay child
        support on behalf of the patient shall be
        given a credit against charges for which he
        or she would otherwise be liable based on
        ability to pay for the amount of child
        support the parent actually pays for the
        benefit of the patient.      The parent who
        receives the child support payments is liable
        for the charges based on the child support
        obligation to the extent such payments are
        actually received in addition to the liabil-
        ity of such parent based on ability to pay.
        The department may, upon the failure of a
        parent to pay child support in accordance



                             p. 4822
W. 0. Shultz II - Page 3      (JM-953)




         with the child support obligation or upon the
         failure of a parent to pay charges based on
         the child support obligation, file a motion
         to modify the court order to require the
         child support to be paid directly to the
         State hospital or facility in which the
         patient resides for the patient's support,
         maintenance, and treatment.   The court may,
         in addition, order all past due child support
         to be paid to the State hospital or facility
         to the extent that charges have been made
         against   the   child   support   obligation.
         (Emphasis added.)
In summary, non-indigent patients include persons who have
"someone legally liable for their support.11 The state is
entitled to seek reimbursement      for care rendered     to
non-indigents. You first ask whether the Indigent Health
Care and Treatment Act, article 4438f, V.T.C.S., makes
counties and public hospitals *'legally liable for We1
supportqlof certain individual so that those individuals can
be considered "non-indigents" for purposes of        article
3196a.l
     The Indigent Health Care and Treatment Act was enacted
in 1985 to clarify the obligations of counties and public
hospitals for indigent health care. Section 2.02 of the
Indigent Health Care and Treatment Act provides:
            (a) Each county shall provide health care
         assistance as prescribed by this title to
         each eligible resident of that county who
         does not reside within the area that a public
         hospital or hospital district has a legal
         obligation to serve:
            (b) The county is the payor of last resort
         and shall provide assistance only if other




 -_1. The
        _ Indigent
            __ .     . Health
                            _ .Care. and
                                     _ _.Treatment
                                              .      Act does not
affect the ObligatiOnS    Of nOSpitS   diStrlCtS.    see  V.T.C.S.
443Sf, 55 11.02, 12.01(b). (Hospital.districts' obligations
in regard to       indigent health care          are governed      by
constitutional and statutory provisions governing hospital
districts.) Therefore, we will consider your question about
hospital districts separately.




                               p. 4823
W. 0. Shultz II - Page 4   (JM-953)




        adequate public or private sources of payment
        are not available.
Se al Q f 2.03 (providing that eligibility depends on
inzomesand resources). Section 10.02(a) provides, in part:
           Each public hospital shall provide health
        care assistance as prescribed by this title
        to each eligible resident of the area that
        the hospital has a legal obligation to serve.
See also 9 10.02(b) (providing that eligibility depends   on
income and resources). Section 12.01(e) provides:
           A public hospital is the payor of last
        resort under this title and is not liable for
        payment or assistance to an eligible resident
        of the area that the public hospital has a
        legal obligation to serve if any other public
        or private source of payment is available.
We conclude that those provisions do not make counties    and
public hospitals "legally liable for [the] supportI'of    any
individual.
     In Attorney General Opinion JM-705 (1987), we addressed
an issue related to your question.     The issue there was
whether an indigent's county of residence or the University
of Texas Health Center at Tyler (hereinafter the "Tyler
hospital") was liable for the indigent's treatment for a
heart disease at the Tyler hospital. The statutes governing
the Tyler hospital contain a provision that tracks section 1
of article 3196a:
           Patients admitted to State chest hospitals
        shall be two (2) classes:
           (1) Indigent public patients and
           (2) Non-indigent public patients.
           (a) Indigent public patients are those who
        possess no property of any kind nor have
        anyone legally responsible for their support,
        and who are unable to reimburse the State.
        This class shall be supported at the expense
        of the State.
V.T.C.S. art. 4477-11, 9 9 (Texas Tuberculosis Code).     The
opinion concluded that the county was responsible for     the




                           p. 4824
W. 0. Shultz II - Page 5   (JM-953)




indigent's treatment. The basis of the decision, however,
was that the provisions of article 4477-11 apply only to the
care and treatment of persons with tuberculosis. Therefore,
a person with a heart disease is not among the persons to be
supported at the expense of the state pursuant to section 9
of article 4477-11. Despite the conclusion that the county
was responsible for the health care of the individual in
question, however, the opinion indicated that the state
would be responsible if the indigent had been treated for
tuberculosis. Implicit in that is that the Indigent Health
Care and Treatment Act does not make the county someone
"legally responsible for [the] support" of its indigent
residents for purposes of article 4477-11, section 9.
     We think that implication is correct and that it
applies to article 3196a as well as article 4477-11.     The
Indigent Health Care and Treatment Act requires counties and
public hospitals to provide "health care assistance" under
specified circumstances.    Ordinarily, "supports* includes
much more than "health care assistance."        Parents are
responsible for the "supportl*of their children, and spouses
are responsible for the "support" of each other. Fam. Code
5 4.02. l%upportltin that context includes food, clothing,
shelter, as well as      medical attention.    Woodruff   V.
Woodruff, 487 S.W.2d 791, 793 (Tex. Civ. App. - Texarkana
1972, Do    writ).   Because   article 3196a    specifically
identifies spouses and parents of minors as persons from
whom reimbursement may be sought, we think it as clear that
the word N1supportll
                   in article 3196a means someone such as a
parent or spouse who has an obligation to provide the
necessities of life. The Indigent Health Care and Treatment
Act creates a much narrower obligation, not an obligation to
*lsupport.llTherefore, persons for whom counties and public
hospitals must provide health care under the Indigent Health
Care and Treatment Act are not "non-indigents" for purposes
of article 3196a.2


   2. You do not ask about article 2351(6), V.T.C.S,   which
provides that each commissioners court shall:
       Provide for the support of paupers and such
       idiots and lunatics as cannot be admitted
       into the lunatic asylum, residents of their
       county, who are unable to support themselves.
       A county is obligated to provide health care
       assistance to eligible residents only to the
                                       (Footnote Continued)




                           p. 4825
W. 0. Shultz II - Page 6   (JM-953)




     Sections 2.02 (b) and 12.01(e) of the Indigent Health
Care and Treatment Act bolster our conclusion.         Those
provisions state that counties and public hospitals are
payors of the last resort and are not responsible if other
adequate public or private sources of payment are available.
Those provisions make clear that the Indigent Health Care
and Treatment Act was not intended to relieve other public
entities of any obligations to provide health care.
     You also ask whether a hospital district is "legally
liable for the support" of its needy inhabitants.    Article
IX, section 9, of the Texas Constitution provides in part:
          The Legislature may by law provide for the
       creation, establishment,    maintenance   and
       operation of hospital districts
       providing that any district so created' shali
                                                .
       assume full responsibility for      providing
       medical and hospital care for its needy
       inhabitants . . . .
Again, a responsibility to provide medical and hospital care
is not the equivalent of an obligation to "supportt'someone.
Therefore, article IX, section 9, of the Texas Constitution
does not make needy inhabitants of hospital districts
%on-indigents" for purposes of article 3196a.3


(Footnote Continued)
        extent prescribed by the Indigent Health Care
        and Treatment Act.
See aenerally Attorney General Opinion JW-815 (1987).    In
any case, we think that the specific provisions of article
3196a and chapter 73 of the Education Code would control
over the general provision of article 2351(6). See State v.
Jones, 570 S.W.2d 122, (Tex. Civ. App. - Austr1978,      no
     . Article 2351(6) also indicates that medical care z
l!lri&)
only one aspect of l%upport.VV

   3. Although you do not raise the issue, it has been
suggested that article IX, section 9, prohibits the state
from spending money for medical care for needy inhabitants
of a hospital district. We point out, though, that article
IX, section 9, prohibits other municipalities and political
subdivisions, not the state, from taxing to provide medical
care.




                           p. 4826
,

    W. 0. Shultz II - Page 7   (JM-953)




         All hospital districts are subject to the provisions of
    the statutes under which they are created. Although we have
    not reviewed all the statutes that create or allow the
    creation of hospital districts, we are aware of none that
    make hospital districts liable for the l'support*lof its
    needy inhabitants.
                          SUMMARY
               The Indigent Health Care and Treatment
            Act, article 443Sf, V.T.C.S., makes counties
            and public hospitals responsible for health
            care for certain indigents: it does not make
            counties or public hospitals liable for the
            llsupportl'
                      of indigents. Therefore, article
            4438f does not make indigents for        whom
            counties or public hospitals are obligated to
            provide health    care "non-indigents"    for
            purposes of article 3196a, V.T.C.S.
               Article IX, section 9, of the        Texas
            Constitution   makes    hospital    districts
            responsible for medical care for their ~needy
            inhabitants: it does not make hospital dis-
            tricts responsible for the llsupportl'
                                                 of their
            needy inhabitants.   Therefore, article IX,
            section 9, does not make needy inhabitants of.
            hospital   districts   "non-indigents"    for
            purposes of article 3196a, V.T.C.S.




                                          JIM     MATTOX
                                          Attorney General of Texas
    MARY KELLER
    First Assistant Attorney General
    LOU MCCREARY
    Executive Assistant Attorney General
    JUDGE ZOLLIE STEAKLEY
    Special Assistant Attorney General
    RICK GILPIN
    Chairman, opinion Committee
    Prepared by Sarah Woelk
    Assistant Attorney General



                                  p. 4829
