THEATITORNEY GENERAL 

OFTEXAS 

December 16, 1959 

Honorable James A. Turman Opinion No. 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 Texas Youth Council. 

You have requested the opinion of this office on the following 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 responslbilities 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 affirmative, 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 afflrmative, 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,h Development 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- 

"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 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 Public Welfare with respect to 

the Waco State Home." 

Section 25 of Article 514311 reads in part as follows: 

"(a) Por the parpose of,carrying out its duties, 

the You,th Council is authorized to make use of law 

enforcement, detention, supervisory, medical., educational, 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:LudSng children's boarding homes, as those terms are used 

in child welfare work. 

The currerat <general Appropriation Act (Chapter 23, Article. 

:, Sectlon 40, Acts o.f the 56th Legislature, Third Called Session, 

Fjg,* at page 504) contains the following provision: 

"Sec. 40. Foster Home Care. Pursuant to existing 

statutory authority, t.he Council may 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 institutions under its jurisdiction 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 expended 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 Comptroller 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 provision with respect to foster care for children in all the institutions 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 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's boarding homes at a reasonable rate 

not to exceed $1.00 per child per day, and also contains other conditions 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 Appropriation 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 oft the 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 

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 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. 

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