Untitled Texas Attorney General Opinion ( 1969 )

December 12, 1969 Hon. John Klnross-Wright Opinion No, M-538 Commissioner Texas Department of Mental Re: Is a community mental Health and Mental Retardation health center a "unit Box S, Capitol Station of government"under Austin, Texas Section 2 of the Texas Tort Claims Act, and related questions. Dear Dr. Klnross-Wrlght: Your recent letter of request for an opinion on the above questions reads In part as follows: "Under authority of the Texas Mental Health and Mental Retardation Act, being Article 5547-201 through 5547-204, ... approximately 25 community mental health and mental retardation centers have been establishedIn this State. These centers are receiving State grants-in-aid from this Department and are providing services to the mentally ill and mentally retarded, The Legislature recently passed the Texas Tort Claims Act, ... which will become effective January 1, 1970. There is some question as to whether a community center comes within the Texas Tort Claims Act.'! Within the foregoing framework, you ask the following specl questions: 1. Is a community mental health center a "unit of government"under Section 2 of the Texas Tort Claims Act so that it would be liable under the terms of the Act? 2. If question 1 is'answered In the affirmative, may a communitymental health center purchase llabllity insurance to protect Itself? 2571 Hon. John Klnroas-Wright,page 2 - M-538 3. If questions 1 and 2 are answered In the afflrma- tlve, may a cumnunlty mental.healthcenter use State grant-in-aidfunds to buy llablllty Insurancewhen those funds are appropriatedto the Texas Department of Mental Health and Mental Retardation and distributed by that Department to community mental health centers? 4. If question 1 Is answered in the affirmative would the State grant-in-aid funds of a communitymental health center received from the Texas Department of Mental Health and Mental Retardation be subject to a judgment rendered against a community mental health center? In determiningan answer to your first question, we quote the following from Section 2 of the Texas Tort Claims Act (Acts 61st Legislature,Regular Session, 1969, Chapter 292, page 874, codified as Article 6252-19, Vernon's Civil Statutes): "Sec. 2. The following words and phrases as used in thls Act unless a different meaning Is plainly required by the context shall have the following meanings: "(1) 'Unit of government' or 'units of govern- ment' shall mean the State of Texas and all Of the several agencies of government which collectively constitute the government of the State of Texas, specificallyIncluding, but not to the exclusion of, other agencies bearing different designations,all departments,bureaua, boards, commissions,offices, agencies, councils and courts; all political sub- divisions, all cities, counties, school districts, levee Improvementdistricts, drainage districts, Irrigationdistricts, water Improvementdistricts, water control and improvement districts, water control and preservationdistricts, fresh water supply dls- trlcts, navigation districts, conservationand recla- mation districts, soil conservationdistricts,river authorities,and junior college districts; and all Institutions,agencies and organs of governmentwhose status and authority 1s derived either from the Constl- tutlon of the State of Texas or from laws passed by the Legislature pursuant to such Constitution. Provided, however, no new unit or units of government are hereby created." 2572 Hon. John Klnross-Wright,page 3 M-538 With the foregoing definition In mind, we now look to the Statutory provisions regarding the creatlbn of community centers for mental health and mental retardation. Article 5547-203, Section 3.01, Vernon's Civil Statutes, is quoted as follows: "Sec. 3.01. (a) Local agencies which may estab- lish and operate community centers are a county, a city, a hospital district, a school district, or any organizationalcombination of two (2) or more of these. When community centers are established by an organizationalcombination,the governing bodies of such organizationalcombinationshall enter into a contract between or among them which shall stipulate: (1) the kinds and number of ccmmunlty cen- ters, as that term Is defined in sub- section (b) below, which are to be established,and (2) whether the board of trustees shall consist of not less than five (5) nor more than nine (9) members selected from the governing bodies of the organizational combination,or of not less than five (5) nor more than nine (9) members to be appointed from the qualified voters of the region to be served. This contract may be renegotiatedor amended from time to time as necessary to provide for the establishmentof additional community centers or to change the method of establishinga board of trustees. “(b) As used in this Act, a 'communitycenter' may be: (1) 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." After an analysis of the foregoing statutory provisions, It Is our view that a community center Is merely a component part of a "unit of government" as defined In Section 2 of the Texas Tort Claims Act. Such a center Is simply a local agency created either by unilateral action or contract by or between designated 2573 Hon. John Klnross-Wright,page &M-53,8 local governmentalbodies. It is our opinion that the legal effect of the Texas Tort Claims Act is not to Impose direct llablllty upon such an agency as such, but rather that any tortlous conduct attributable to an employee, officer or agent of a community center would be the responsibilityand liability of the creating local governmentalunit or units. In view of the negative answer to your first question, your other questions are not answered. SUMMARY A community center for mental health and mental retardation services, created under Article 5547-203, V.C.S., is not such a "unit of government"upon which direct liability is Imposed by the Texas Tort Claims Act (Article 6252-19, V.C.S.); however, any liability in- curred by an employee, officer or agent of such an agenoy would be the responsibilityand liability of the creating local governmentalunit or units. f7 Verx*pruly'yours, Prepared by Malcolm L. Quick Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Alfred Walker Watson Arnold Wayne R. Rodgers Jim Swearingen MEADE F. GRIFFIN Staff Legal Assistant NOLA WHITE First Assistant 2574