THEATITORNEY GENERAL

OFTEXAS

December 16, 

### 1959

Honorable James A. Turman OpinionNo. 

### WW-761 Executive Director Texas Youth Council Re: Authority of the CompAustin, Texas troller to issue warrants covering the cost of foster home care for children in the custody Dear Dr. Turman: of the TexasYouth Council.

You have requested the opinion of this office on the following questions:

"1.Can the Comptroller issuewarrants covering the cost of foster home care for children in the custody of the TexasYouth Council, and presently residing in Institutionsunder its jurisdiction, in accordancewith existing statutory authority (Article 5143d) at the rates specified in House Bill 4, Article II, Section 40, Acts of the 

### 56thLegislature?

"2. In the creation of the TexasYouth Council and the delegationof the administrativeresponslbilities thereto,was it the legislative intent that children in the Waco State Home be provided less, in terms of foster careprovisions, than the other five institutionsunder this agency?



### "3.If the answer to the above is in the affirmative, can the Comptroller approvewarrants covering the cost of foster home care for childrenbeing cared for presently in the Waco State Home?

'%. If your answer to the above is in the afflrmative, can the Comptrollerapprovewarrants covering the cost of foster home care for childrenpresently residing in fosterhomes 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, enactedby 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. tion 8 provides: Article 5143d, Sections 1,4(f), 8. Sec-

"TheTexas 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 GatesvilleState School for Boys, the Gainesville State School for Girls, and the Crockett State School for Negro Girls; (b)the Board for Texas State Hospitals and Spec,iaL

Schools in respect to the Corsicana Sta,te Home and Texas Blind, Deaf and Orphan Home; and (c) the Department of PublicWelfare with respect to the Waco State Home."

Section 25 of Article 514311 reads in part as follows:
"(a)Por the parpose of,carryingout its duties, the You,th

Council is authorized to make use of law enforcement,detention, supervisory,medical.,educational, correctional,segregative,and other facilities, institutionsand agencieswithin the state.When funds
are available for the purpose, the Youth Councilmay enter into agreementswith the appropriateprivate or public'

official for separate care and special treatment in existing institutionsof persons subject to the control of the Youth Council."

We think this section is broad enough to encompass foster homes, inc:LudSng

children'sboardinghomes, as those terms are used in child welfare work.

The currerat

<general

Appropriation Act (Chapter23, Article. :,Sectlon 40, Acts o.fthe 56th Legislature,Third Called Session, Fjg,* at page 504) contains the followingprovision:

"Sec.40. Foster Home Care. Pursuant to existing statutory authority, t.he Councilmay place children committed to its custody in approved foster homes and from the appropria'tions made in this Act for 'operating expenses' of the respective institutionsunder its jurisdictionmay reimburse such approved fosterhomes at a reasonable rate not to exceed $1.50 per childper day; prowl,ded,

however, that none ofthe moneys appropriated in thisAct may be pald to any employee of the TexasHonorable 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 expended to any foster home in which any employee of said Youth Councilhas a financial interest. Any childrenplaced in foster homes shallbe deemed to have the same status of other children in the homes
or institutionsunder the Youth Council, and shall continue to be wards and subject to the guardianship of the superintendentof such respectivehomes or institutions."

There are two requirements that are needed for the Comptroller to have authority to issuewarrants. The Legislaturemust provide general statutoryauthority to accomplish a certainpurpose and itmust provide funds to pay for thatpurpose. Section 25 of Article 5143dprovides the authority for the Youth Council to place children in its custody in fosterhomes and the above-quoted section in the GeneralAppropriationAct provides the funds to accomplish thispurpose. Therefore, the Legislaturehas given the Comptroller the authority to issuewarrants 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 AppropriationAct provides that the rate shall not exceed $1.50 per childper day. An appropriation billmay containprovisionswhich detail, limit, or restrict the use of the funds, if the provisions are necessarily connectedwith and incidental to the appropriationand do not conflictwith general legislation.Att'y Gen. Op. V-1254 (1951). The provision authorizing payment not to exceed $1.50 per childper day clearly is a valid provision with respect to foster care for children in all the institutions under the jurisdictionof the Council other than the Waco State Home. We shallconsiderwhether it is valid with respect to the Waco State Home in answeringyour second question,which we restate:

"Inthe creation of the Texas Youth Council and the delegationof the administrativeresponsibilities 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?"

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'sboardinghomes at a reasonable rate not to exceed $1.00 per child per day, and also contains other conditions and restrictionson placement. If this general law provision has not been repealed or supersededby subsequentgeneral legislation, the appropriationrider Is invalid insofar as it attempts to raise the limit to $1.50 for care In boardinghomes used by the Waco State Home.-- .

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

It is our opinion that Section 25 of Article 5143dhas supersededArticle 3259 and that the $1.00 limit Is thereforeno longer in effect. Consequently,the $1.50 limitation in the Appropriation Act is fully applicable to the Waco State Home as well as to the other five institutionsunder the Youth Council.

Section 39 of Article 5143d expressly repeals conflicting laws to the extent of conflict.Even without an expressprovision 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 construedas an implied repeal of the former statute, although there is nothing in the provisions of the two statuteswhich 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 278 (1444) 39 Tex.J 142 Tex. 486 179 S W.2d ur., Statutes E)tiO.'Section 25 of'Article 5143d is authoriiy for foster home care'for all institutionsunder the Council. It fixes no rate limit and leaves the Legislature free to do so each time it appropriatesmoney for foster care.We think this schemewas 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 questionmakes a further answer to the other two questionsunnecessary.

SUMMARY

The Comptrollermay issuewarrants covering the cost of foster home care for children in the custody of the TexasYouth Council. Itwas 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 institutionsunder the Council in regard to foster home care provisions.

MKW:bh

APPROVED: Yours very truly,

WILL WILSON Attorney General of Texas

OPINION COMMITTEE W.V. Geppert, Chairman

Marvin H. Brown, Jr. Cecil C. Csumnack, Jr. James P. Ryan BY

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore