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July 24, 1975 

The Honorable Kenneth Gaver, M.D. Opinion No. H- 646 

Commissioner, Texas Deparhnent 

of Mental Health and Mental Retardation Re: Medical treatment of 

Box 12668, Capitol Station voluntarily admitted 

Austin, Texas 78711 patients at state schools 

for the mentally retarded. 

Dear Dr. Gaver: 

The parents of two mentally retarded children have.~applied for the 

voluntary admission of the children~to a ‘state school for the mentally retarded, 

but, due to the parents’ religious beliefs, they do not want the children to 

receive a blood transfusion for any reason while under the jurisdiction of 

the state school. In light of this situation you ask our opinion with respect 

to the following questions: 

1. Is the State school for the mentally retarded 

required to admit these minor children in the event I 

their parents ‘withhold consent for blood transfusions 

to be administered to their children while under the 

jurisdiction of the State school? 

2. Does the State school for the mentally retarded 

have the authority to give the parents the assurance that 

their children will under no circumstances be subjected 

to a blood transfusion while under the jurisdiction of 

the State school? 

3. If these two children are admitted to the State 

school for the mentally retarded and their parents 

withhold their consent to a blood transfusion for 

their children, what course of action should the State 

school take if the children’s health or life is’threatened 

for failure to have a blood transfusion? 

p. 2837 
The Honorable Kenneth D. Gave=, M. D., page 2 (H-646) 

Section 9 of the Mentally Retarded Persons Act, article 3871b, V. T. C. S., 

provides an administrative procedure by which a person may be voluntarily 

admitted-to a State school. Section 10 provides: 

In determining the order in which eligible persons 

are admitted to its available facilities the Board 

shall consider the following factors: 

(1) The relative need of the person for special 

training, education, supervision, treatment, care 

or control: 

(2) The impact of the person upon the community; and 

(3) The ability of the person’s family to assimilate him effectively into family life. 

The provisions of this section shall apply to both 

judicial and administrative admissions under this Act. 

Section 2 provides: 

It is the purpose of this Act to afford mentally 

retarded Texas citizens an ~opporhmity to develop 

to the fullest practicable extent their respective 

mental capacities. 

In light of the declared purpose of the Act, a parent’s prospective refusal 

to consent to blood transfusions in our opinion may not alone provide a 

basis for denying admission to a child who is in need of special training. 

We do not consider the situation where the parents’ actions would interfere 

with the school’s assistance of mentally retarded children in the development of their mental capacities. 

Your second question is whether the State school may give assurances 

that no blood transfusions will be performed on a particular student. 

Article 3174b-2 provides in part: 

p. 2838 
The Honorable Kenneth D. Gave=, M. D., page 3 (H-646) 

The [Texas Department of Mental Health and 

Mental Retardation], directly or through its 

authorized agent or agents, shall provide or 

perform recognized medical treatment or 

services to persons admitted or committed 

to its care. Where the consent of any person 

or guardian is considered necessary, and 

is requested, and such person or guardian 

shall fail to immediately reply thereto, the 

performance or provision for the treatment 

or services shall be ordered by the superintendent upon the advice and consent of three ~, 

(3) medical doctors, at least one of whom must 

principally be engaged in the private practice 

of medicine. Where .there is no guardian or 

responsible relative to whom request can be 

made, treatment and operation .shall be per: 

formed on the advice and consent of three (3) 

physicians licensed by the State Board of 

Medical Examiners. 

Relying upon this article, Attorney General~Opinion M-152 (1967) 

held that the Department had the duty to provide necessary medical 

treatment to persons within its jurisdiction. That a blood transfusion is 

in some instances a “recognized medical treatment” is beyond doubt. 

Accordingly, in our opinion a State school may not give assurance that 

under no circumstances will the children be subjected to a blood transfusion. 

Your third question concerns the proper course of action in a situation 

where a blood transfusion is thought to be necessary to protect the health 

or life of a child and his parents refuse consent. In such a situation the 

parents may seek to remove the child from the school. V. T. C. S., 

art. 3871b. sec. 9(b). However, under this provision the superintendent 

may file an application for judicial admis.sion if the medical treatment is 

of such necessity that the child “can not be discharged with safety to himself. ” 

In this manner the school may retain jurisdiction of the child in order to provide necessary medical treatment. 

Except as otherwise provided by judicial order, the~parents of a child 

are given the power to consent to medical treatment for their minor child. 

p. 2839 
The Honorable Kenneth D. Gave=, M. D., page 4 (H-646) 

Family Code, sec. 12.04(6); See Moss v. Rishworth. 222 S. W. 225 

(Tex. Comm. 192.0). In someinstances the Department may obtain 

consent pursuant to article 3174b-2. supra. While the summary in 

Attorney General Opinion M-152 contains language which would allow 

the Department as a general matter to provide treatment without 

obtaining consent from a parent or guardian, the body of that opinion 

limits such authority to those instances where article 3174b-2 is 

complied with. In our opinion the summary is incorrect and is not in 

accordance with the unambiguous words of the statute. 

Consequently, the procedure contained.in article 3174b-2 is 

available only when either there is no parent or guardian or the consent 

of the parent or guardian is requested and there is no immediate reply; 

this procedure may not be utilized where there is an immediate negative 

reply. The State school must therefore obtain a judicial ‘order which 

either provides the necessary consent or permits consent to be given by 

a person other than a parent. 

As an agency of the State the Department of Mental Health and 

Mental Retardation may bring a Suit Affecting the Parent Child Relationship. Family Code, sec. 11.03. A court could order the performance of the medical treatment as a “temporary order for the safety 

and welfare of the child.” Family Code, sec. 11. 11(a). In the alternative, the court could appoint a temporary possessory conservator, 

section 11.11(a)(l), who could be empowered to consent to the medical 

treatment. Family Code, sec. 14.04(3). 

SUMMARY 

The State school for the mentally retarded may 

not refuse admission to a child solely on the basis of 

a prospective refusal of the parents to consent to a 

blood transfusion. The State school may not give 

assurances that a blood transfusion will not be performed 

under any circumstances. In the event a blood transfusion 

p. 2840 
The Honorable Kenneth D. Gave=, M. D., page 5 (H-646) 

is considered necessary to preserve the health or 

life of a student in the State school and the student’s 

parents refuse consent, the consent of a district 

court or a person authorized by a district court to 

give consent must be obtained prior to performing 

the transfusion. 

Very truly yours, 

APPROVED: 

c/ Attorney General of Texas 

DAVID M. KENDALL, First Assistant 

C. ROBERT HEATH, Chairman 

Opinion Committee 

p. 2841