Untitled Texas Attorney General Opinion

THEATITORNEY GENERAL

OFTEXAS

December 16, 1959

Honorable James A. Turman Opinion No. WW-761 Executive Director Texas Youth Council Re: Authority of the Comp- Austin, Texas troller to issue warrants covering the cost of foster home care for children in the custody Dear Dr. Turman: of the Texas Youth Council. You have requested the opinion of this office on the fol- lowing questions: "1. Can the Comptroller issue warrants covering the cost of foster home care for children in the custody of the Texas Youth Council, and presently residing in Institutions under its jurisdiction, in accordance with existing statutory authority (Article 5143d) at the rates specified in House Bill 4, Article II, Section 40, Acts of the 56th Legislature? "2. In the creation of the Texas Youth Council and the delegation of the administrative responslbil- ities thereto, was it the legislative intent that children in the Waco State Home be provided less, in terms of foster care provisions, than the other five institutions under this agency? "3. If the answer to the above is in the affirma- tive, can the Comptroller approve warrants covering the cost of foster home care for children being cared for presently in the Waco State Home? '%. If your answer to the above is in the afflrma- tive, can the Comptroller approve warrants covering the cost of foster home care for children presently residing in foster homes at the rates specified in House Bill 4, Article II, Section 40, Acts of the 56th Legislature?"

Honorable James A. Thurman,page 2 (~~-761)

As you have explained in your opinion request, Article 5143, VernonXs Civil Statutes, enacted by the 55th Legislature in 1957, created the Texas Youth Council as successor to the State Yout,hDevelopment Council and also placed under its jurisdiction the Corsicana State Home, the Waco State Home, and the Texas Blind, Deaf and Orphan School. Article 5143d, Sections 1,4(f), 8. Sec- tion 8 provides: "The Texas Youth Council shall succeed to and be vested with all ri.ghts,powers, duties, facilities, personnel, records and appropriations, relating to the care, custody, and control of children, now held by (a) the State Youth Development Council, including the Gatesville State School for Boys, the Gainesville State School for Girls, and the Crockett State School for Negro Girls; (b) the Board for Texas State Hospi- tals and Spec,iaLSchools in respect to the Corsicana Sta,teHome and Texas Blind, Deaf and Orphan Home; and (c) the Department of Public Welfare with respect to the Waco State Home." Section 25 of Article 514311reads in part as follows: "(a) Por the parpose of,carrying out its duties, the You,thCouncil is authorized to make use of law enforcement, detention, supervisory, medical.,educa- tional, correctional, segregative, and other facilities, institutions and agencies within the state. When funds are available for the purpose, the Youth Council may enter into agreements with the appropriate private or public'official for separate care and special treatment in existing institutions of persons subject to the control of the Youth Council." We think this section is broad enough to encompass foster homes, inc:LudSngchildren's boarding homes, as those terms are used in child welfare work. The currerat<generalAppropriation Act (Chapter 23, Article. :, Sectlon 40, Acts o.fthe 56th Legislature, Third Called Session, Fjg,*at page 504) contains the following provision: "Sec. 40. Foster Home Care. Pursuant to existing statutory authority, t.heCouncil may place children committed to its custody in approved foster homes and from the appropria'tionsmade in this Act for 'operating expenses' of the respective institutions under its juris- diction may reimburse such approved foster homes at a reasonable rate not to exceed $1.50 per child per day; prowl,ded,however, that none ofthe moneys appropriated in this Act may be pald to any employee of the Texas

Honorable James A. Turman, page 3 (W-761)

Youth Council for such foster home care, nor may any of the moneys appropriated In this Act be ex- pended to any foster home in which any employee of said Youth Council has a financial interest. Any children placed in foster homes shall be deemed to have the same status of other children in the homes or institutions under the Youth Council, and shall continue to be wards and subject to the guardianship of the superintendent of such respective homes or institutions." There are two requirements that are needed for the Comp- troller to have authority to issue warrants. The Legislature must provide general statutory authority to accomplish a certain purpose and it must provide funds to pay for that purpose. Section 25 of Article 5143d provides the authority for the Youth Council to place children in its custody in foster homes and the above-quoted section in the General Appropriation Act provides the funds to accomplish this purpose. Therefore, the Legislature has given the Comptroller the authority to issue warrants covering the cost of foster home care for children in the custody of the Council. Section 25 of Article 5143d does not set a limit on the rate of pay for foster home care, but the Appropriation Act provides that the rate shall not exceed $1.50 per child per day. An appropriation bill may contain provisions which detail, limit, or restrict the use of the funds, if the provisions are necessarily connected with and incidental to the appropriation and do not conflict with general legislation. Att'y Gen. Op. V-1254 (1951). The provision authorizing payment not to exceed $1.50 per child per day clearly is a valid pro- vision with respect to foster care for children in all the institu- tions under the jurisdiction of the Council other than the Waco State Home. We shallconsider whether it is valid with respect to the Waco State Home in answering your second question, which we restate:

"In the creation of the Texas Youth Council and the delegation of the administrative responsibilities thereto, was it the legislative intent that children in the Waco State Home be provided less, in terms of foster care provisions, than the other five institu- tions under this agency?" Article 3259 of the Revised Civil Statutes, last amended in 1941, provides in essence that children committed to the Waco State Home may be placed in children's boarding homes at a reasonable rate not to exceed $1.00 per child per day, and also contains other con- ditions and restrictions on placement. If this general law provision has not been repealed or superseded by subsequent general legislation, the appropriation rider Is invalid insofar as it attempts to raise the limit to $1.50 for care In boarding homes used by the Waco State Home.

-- . Honorable James A. Turman, page 4 (W-761)

It is our opinion that Section 25 of Article 5143d has superseded Article 3259 and that the $1.00 limit Is therefore no longer in effect. Consequently, the $1.50 limitation in the Appro- priation Act is fully applicable to the Waco State Home as well as to the other five institutions under the Youth Council. Section 39 of Article 5143d expressly repeals conflicting laws to the extent of conflict. Even without an express provision for repeal, where a new statute embraces the subject of a former one and creates a new and independent system relative to the subject matter oftthe two statutes, it is construed as an implied repeal of the former statute, although there is nothing in the provisions of the two statutes which might not stand together if all of their terms were inserted in one act. Bryan v. Sundberg, 5 Tex.418 (1849); Dallas Consol. Electric St. Ry. Co. v. Stagtei;02 Tex. 570 120 S.W. 9r (1909) Motor Inv. Co. v. City of H 142 Tex. 486 179 S W.2d 278 (1444) 39 Tex.Jur., Statutes E)tiO.'Section25 of'Article 5143d is authoriiy for foster home care'for all institutions under the Council. It fixes no rate limit and leaves the Legislature free to do so each time it appropriates money for foster care. We think this scheme was intended to apply to all types of foster home care at all the institutions, including the Waco State Home. We answer your second question in the negative. This answer to your second question makes a further answer to the other two questions unnecessary. SUMMARY The Comptroller may issue warrants covering the cost of foster home care for children in the custody of the Texas Youth Council. It was the legislative intent, in the enactment of Section 25 of Article 5143d, Vernon's Civil Statutes, that the Waco State Home be on the same terms as other institutions under the Council in regard to foster home care provisions. Yours very truly, MKW:bh WILL WILSON Attorney General of Texas APPROVED: OPINION COMMITTEE W.V. Geppert, Chairman BY Marvin H. Brown, Jr. Cecil C. Csumnack,Jr. James P. Ryan REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore