THE ATTORXEY GENERAL 

OF TEXAS 

July 13. 1987 

Honorable Steve W. Simmons 

District Attorney 

303 City-County Building 

El Paso, Texas 79901 

Opinion No. JM-745 

Re: Whether a child protective 

services specialist for the 

Department of Human Services may 

be a foster parent for that agency 

Dear Mr. Simmons: 

You &k whether a conflict of interest would exist if a child 

protective services specialist of the Texas Department of Human 

Services were a foster parent for the department. 

Article 6252-9b, section 1, V.T.C.S., provides: 

It is the policy of the State of Texas that no 

state officer or state employee shall have any 

interest, financial or otherwise, direct or 

indirect, or engage in any business transaction or 

professional activity or incur any obligation of 

any nature which is in substantial conflict with 

the proper discharge of his duties in the public 

interest. To implement this policy and to 

strengthen the faith and confidence of the people 

of Texas in their state government, there are 

provided standards of conduct and disclosure 

requirements to be observed by persons owing a 

responsibility to the people of Texas and the 

government of the State of Texas in the 

performance of their official duties. It is the 

intent of the legislature that this Act shall 

serve not only as a guide for official conduct of 

these covered persons but also as a basis for 

discipline of those who refuse to abide by its 

terms. 

Article 6252-9b, section 8(c) provides: 

No state officer or state employee should 

accept other employment or compensation which 
Honorable Steve W. Simmons - Page 2 (~~-745) 

could reasonably be expected to impair his 

independence of judgment in the performance of his 

official duties. 

The Department of Human Services is responsible for regulating 

foster family homes as well as other child-care facilities. Hum. Res. 

Code 6642.001 et seq. To fulfill that responsibility, the department 

has promulgated qualifications and standards for foster parents. 40 

T.A.C. 5583.231 through 83.248. See also Hum. Res. Code 541.021 

(department may pay the cost of foster care in some circumstances). 

Although you indicate that a child protective services specialist is 

assigned to every foster child, you do not describe the specific 

responsibilities of a child protective services specialist. You make 

clear, however, that you are not asking whether a child protective 

services specialist may be assigned to his own foster child. See 

generally Hum. Res. Code P42.021 (department shall employ sufficix 

personnel to fulfill its responsibility to protect children in childcare facilities). 

In the brief you submitted with your request, you suggest several 

potential conflicts of interest. You state, for example: 

Being a foster parent entails certain 

obligations and responsibilities, such as 

attending service plan reviews, court hearings, 

and .other foster parent-related activities. A 

child protective services specialist's job is a 

full-time job that many times requires the 

specialist to work more than the usual 40-hour 

week. Problems will arise in that, as a foster 

parent, the child protective services specialist 

would have to be taking time off from his 

employment to be at meetings and other activities 

required of foster parents, thereby leading to 

interruptions of said employee's job time. 

If the department determined that a potential foster parent would 

not be able to meet the needs of a foster child because of job 

responsibilities or for any other reason, that person would not be 

qualified to be a foster parent. See generally 40 T.A.C. 583.234. If 

the "conflicts" you describe, however, were conflicts of interest for 

purposes of article 6252-9b, then no state employee could be a foster 

parent or, for that matter, a parent. Article 6252-9b does not 

prohibit state employees from engaging in activities or hobbies that 

might occasionally require them to use their leave or to be 

unavailable for overtime work. Cf. Letter Advisory No. 62 (1973) (the 

fact that an individual might nothave sufficient time to devote to 

two public positions does not create legal incompatibility). 

p. 3465 
Honorable Steve W. Simmons - Page 3 JM-745) 

You also suggest that the interests a child protective services 

specialist would have as a foster parent might affect the decisions he 

would have to wake as a child protective services specialist. If a 

child protective services specialist's role as a foster parent 

impaired his ability to make decisions and judgments required for his 

job, then a conflict of interest for purposes of article 6252-9b would 

exist. The determination of whether such a conflict does exist is a 

question of fact and should be determined by the department. See 

Attorney General Opinions H-1223 (1978) (determination of whether: 

conflict of interest exists for purposes of article 6252-9b is a fact 

question that cannot be resolved in the opinion process); H-688 (1975) 

(determination of whether a conflict of interest exists for purposes 

of article 6252-9b must be made by body of which legislator in 

question is a member); see also Attorney General Opinion H-1317 (1978) 

(to the extent that rule of Department of Human Resources precludes 

employee's possession of a real estate license where no conflict of 

interest exists and where employee's performance is in no way 

impaired, rule Is invalid). 

SUMMARY 

The question of whether a Department of Human 

Services child protective services specialist may 

serve as a foster parent is a question of fact 

that cannot be resolved in the opinion process. 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STRAKLEY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Sarah Woelk 

Assistant Attorney General 

p. 3466