Untitled Texas Attorney General Opinion ( 1972 )

Honorable Joe Resweber Opinion No. M-1266
County Attorney
Harris County Courthouse Re: Whether the Harris County
Houston, Texas 77002 Community Mental Health and
Mental Retardation Center is
an agency of the State or
county agency and related
Dear Mr. Resweber: questions.
In your recent request on behalf of the Harris County
Commissioners Court you ask our opinion on the following'
questions:
"1. IS the Harris County Commissioners
Court (as the governing body of Harris County)
authorized to act as the Board of Trustees for
the Harris County Community Mental Health and
Mental Retardation Center?
"2 . Is the Harris County Community Mental
Health and Mental Regardation Center a county
department or an agency of the state?
"3. If the Harris County Community Mental
Health and Mental Retardation Center is an
agency of the state, can the Commissioners Court
(by resolution entered in its minutes) convert it
into a county department?"
Respecting question one, Article 5547-203. Section 3.01(a)
Vernon's Civil Statutes, provides, in part, as follows:
-6209-
Hon. Joe Resweber. page 2 (M-1266)
"Local agencies which may establish and
operate community centers are a county, a city,
a hospital district, a school district, or any
organizational combination of two (2) or more
of these. . . "
Section 3.02(a) of the same Article provides in part:
"The board of trustees of community centers
established by a single city, county, hospital
district or school district may be the governing
body of the single city, county, hospital district
or school district, or that governing body may
appoint from among the qualified voters of the
region to be served a bdard of trustees consisting
of not less than five (5) nor more than nine (9)
persons. . .'
From the above quoted portions of the statute it is our
opinion that the Harris County Commissioners Court is authorized
to act as the Board of Trustees of the Harris County Community
Mental Health and Mental Retardation Center.
With respect to question two as to whether a community center
is an agency of the state or a county department, we must look
to the whole Act as codified in Articles 5547-201 through 5547-204,
Vernon's Civil Statutes.
The agencies of the state that are created by the Act to
accomplish the required mental health purposes are the Texas
Department of Mental Health and Mental Retardation and the
community centers, which under Section 3.14 of Article 5547-203,
in collecting fees for treatment of non-indigents, is granted
II
. . . the same rights, privileges and powers granted to the Texas
Department of Mental Health and Mental Retardation." Other
"local agencies" mentioned in Section 3.01(a) of the Act are
counties, hospital districts, school districts, and municipalities.
These are agencies of the state also. See Vol. 40, words &
Phrases, p. 27, "State Agency", and cases there annotated.
-6210-
Hon. Joe Resweber, page 3 (M-1266)
The purpose and policy as expressed by the Legislature is
found in Article 5547-201, Section 1.01 (a) and (b).
"1.01(a) o It is the purpose of this Act to
provide for the conversation and restoration of
mental health among the people of this state, and
toward this end to provide for the effective
administration and coordination of mental health
services at the state and local levels, and to
provide, coordinate, develop and improve services
for the mentally retarded persons of this state to
the end that they will be afforded the opportunity
to develop their respective mental capacities to
the fullest practicable extent and. to live as useful
and productive lives as possible.
"(b) e The legislature declares that the public
policy of this state is to encourage local agencies
and private organizations to assume responsibility
for the effective administration of mental health
and mental retardation services, with the assistance,,
cooperation, and support of the Texas Department ,of
Mental Health and..Mental Retardation created by this
Act."
Article 3 of the,Act deals with the creation, organkation,
powers and duties of community centers. Whi.le community centers
come into existence through a voluntary establishment by a
"local agency" under authority of the enabling legislation of
Article 5547-203. Section 3.01, once established a center becomes
a juristic entity with an administrative board, a director and
employees, which exercise a delegated portion of the sovereign
power of the state and which do not exist independent of the
state but which are allocated state monies or property by the
state department and operate under the department's rules and
regulations. Section 4.01, et seq. of Arti,cle 5542-203. The
community centers thus meet the legal criteria of an agency of
the state. See Allis-Chalmers Mfq, Co. v. Curtis Electrical Co.,
259 s.w.2a 919-920-921, aff'a 153 Tex. 118, 264 s.w.za 700, 701
(1954); 40 Words & Phrases 2'7. "State Agency."
-ball-
Hon. Joe Resweber, page 4 (M-1266)
In Attorney General's Opinion C-584 (1966) this office held
that community centers were agencies of the state as follows:
"It thus appears that the conmrunity centers
which would be established under Article 3 of
House Bill 3, Acts of the 59th Legislature, Regular
Session, 1965, become an aqencv of the State of
Texas . . .'I (Emphasis added.)
Since 1966, the Legislature has met numerous times and has
not seen fit to amend the statute so as to alter the affect of
our holding, which has been followed up to this time. Under
these circumstances, our opinion is entitled to great weight in
the courts, which will follow it unless clearly wrong. Thomas v.
Grobl, 147 Tex. 70, 212 S.W.Zd 625 (1948). Furthermore, it is
the policy of this office to follow an earlier opinion on the
same subject in the absence of some change in the law by court
decision or otherwise unless the opinion is shown to be clearly
wrong. Attorney General's Opinion No. M-605 (1970).
Having held that a community center is an "agency of the
state", we stress, however, that we are not thereby holding
that it is a "state agency". A legal distinction exists to
distinguish the two terms and they are not synonymous. The
term "state officer" is not synonymous with "officer of the
state". since by the former term is meant one who exercises
statewide jurisdiction and duties as distinguished from one
exercising more limited or localized jurisdiction and duties.
81 C.J.S. 969-970. States, Sec. 52; and see Willis v. Potts,
377 S.W.Zd 622 (Tex.Sup. 1964). wherein the court held that a
city councilman was not a state officer but was holding an
office under the state for purposes of dual office holding.
Our holding in Opinion No. M-538 (1969) is accordingly to
be distinguished from the present holding, for in that opinion
we held that a community center was not subject to the Texas
Tort Claims Act, Article 6252-19. Our rationale was that the
Legislature intended by the Act to make the state liable for
-6212-
Hon. Joe Resweber, page 5' (M-1266)
certain torts wherein the tort was committed by a defined "unit
of government": that is, the State of Texas and those state
agencies "which collectively constitute the government of the
State of Texas"; all politidal subdivision, c'ities, counties,
and schools and other enumerated districts and authorities:
and all those institutions, agencies and organs of govermnent
whose status and authority is derived by the Constitution or laws
passed pursuant to.the Constitution. We concluded in the opinion
that the community center did not fairly fall within the definition,
it being merely a component part of such a "defined" unit of govern-
ment which is “created’ either by unilateral action or contract by
Or between designated local governmental bodies". A community
center is not a political subdivision, except where by statutory
definitibn it is made so for certain purposes. nor within contem-
plation of the Tort Claims Act an agency created by the Constitution
or a law enacted pursuant thereto. Nor, under that Act is it
such a unit of government which with other agencies collectively
constitutes the government of the State of Texas. It has no
power to tax or raise revenues and no power of eminent domain.
It exercises no power of local self government; but it.does
administer mental health and mental retardatidn programs as ap-
proved and regulated by a state agency which controls the amount
of funds it receives for that purpose. In carrying out ,and admini-
stering its program, it is acting as an agent of the state. Yet
it is not such a state agency as defined and as is, contemplated
for tort liability by the Texas Tort Claims Act,
With regard to question three, the Commission&s' Court is
a constitutional entity exercising only such powers as are con-
ferred upon it by the Consti,tution or statutes. Art. V, Sec.
18, Tex.Const. and Art. 2351, V.C.S. We find no authority in
these or in any other provis.i.onsof law for it to change by
resolution a comm'unity center into a county department.
-6213-
-. .
Hon. Joe Resweber, page 6 ( 266)
SUMMARY
The Harris County Commissioners'
Court is authorized under Article 5547-203,
Section 3.02(a), Vernon's Civil Statutes,
to act as the board of trustees for the
Harris County Community Mental Health and
Mental Retardation Center. Such a community
center is an agency of the state and as such
cannot be changed into a county department
by resolution of county commissioners' court.
Very &tuly yours,
Attor y General of Texas
v
Prepared by Harry C. Green
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
James Hackney
Lynn Taylor
Harriet Burke
Jack Goodman
SAMUEL D. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-6214-