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## ATTOIRXEY GENERAL OF' TEXAS

December 2, 1986 

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Mr. 0. L. McCotte? opinionNo. m-580 Director Texas Department of COrrSCtiOnS Re:Authority of the Texas DepartP. 0. Box 99 ment of Corrections to assume Huntsville,Texas 77340 medical costs with regard to the hospitalization of a .premature infantborn to an inmate
DearMr. McCotter:

You ask whether the Txas Department of Corrections (hereinafter the department)is responsjblefor themedical expenses of a premature infantborn to a prison inuate. You provide the followingbackground:

As a part of the medical services provided inmates incarce.rated at the Gatesville and Mountain View Units, TDC contracts with several free world hospitals to provide delivery services to pregnant inmates. Generally, pregnant inmates are transported to a contract hospital for delivery, and following such delivery, the newborn is placed with rs:tativesof the inmate or, if no relatives are i.vailable,placed in a foster environment. Arrangements for placement of the newborn are made with the coordinated efforts of TDC and theDepartnent of Human Services.

. . . Recently, an infantwas born to an inmate some three months premature. Because of the premature birth, extensiveh,Dspitalization has been required and it is expected that another 2-3months intensive care hospitalizationwill also be required.

You assert that the department lacks legal authority to pay for the medical costs which exceed the expenses of the inmate mother in "normal deliveries." You suggest that the mother is responsible for all suchmedical costs.

Our response toyour raquestassumes thatyou do not question the department'sconstitutional ;andstatutoryduty toprovide inmateswith necessary medical care. Ste U.S. Const. Amends. 8, 14 (due process clause); V.T.C.S. art. 61gGf. The medical expenses of a mother who

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deliversprematurelyare no less "necessary"than themedical expenses of a normal, full-termdeliv'ery.Accordingly, this responseaddresses only the liability of the drpartment for the medical expenses attributable solely to the infant.

No person or agency hclds the authority tomake a contractwhich is binding on the state, exc:ept when authorized to do so by the Texas Constitution or statutes. Tex

. Const

. art. III. §§44. 49: State v. Ragland Clinic-Hospital,159 S.W.2d~l05, 106 (Tex. 1942);cf. Statev. City National Bank of Aust::n,578 S.W.2d 155 (Tex. Civ. App. - Tyler 1979),aff'd. 603 S.W.2d 76r(Tex. 1980). Article 6166~provides that the TexasDepartment of Corrections, togetherwith its d&actor, shall be responsible "for the proper care, treatment, feeding, clothing and management of the prisoners confined therein." This statute applies, by its terms, only to "prisoners."Article 61661 grar,ts the department the power to prescribe reamnable rules and regulations governing the humane treatmentof prisoners and the classificationand separationof prisoners according to sex. Article 61663 also prohibits discrimination against prisoners on the basis of sex. Like article 6166g, however, article 61663 applies only to "prisoners." No other statutes authorize the department to provide for the medical expenses of an infant born to one of tht!department's prisoners. Other than the oblique reference in artic'to 6166j to the separation and classification of prisoners according to sex, the Texas Legisiaturehas made no attempt to address the spem::ial problems faced by pregnant inmates -- much less by their childre:l. Consequently, the department lacks the authority to enter into a contract to pay the medical expanses of a premature infantborn to a prisoner.

You suggest that the prisoner-mother is legally responsible for the medical expenses of her premature infant. Section 12.04 of the Texas Family Code provides, inpart, that

[elxcept as otherwise provided by judicial order or by an affidavit of relinquishment of parental rights

. . . the esrentof a childhas.

. . .

. . . . (3) the duty to support the child, including providing the childwith clothing, food, shelter, medical care, i1c.ddducation.

. . . (Emphasis added).
Thus, "parental"duties clearly include necessary medical care for a premature infant. Addition.slly,section 4.02 of the code provides thatparents are liable to prrsonswho provide necessaries to those to whom support is owed.
Section 11.01of the Family Code states, inpart:

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(3) 'Parent' mans the mother, a man as to whom the child is legitimate, or an adoptive mother or father,but does not includea parent as to whom the parent-child relationship has been terminated.

You do not mention the chi:td'sfather. Both parents have a statutory duty under section 12.04 to support theirminor children. Rarrington
v. State, 547 S.W.2d 616, 619 (Tex. Grim. App. 1977). If the child is not legitimate as to ::tsfather, the Family Code provides for paternity suits and support proceedings. See §13.01 et se , q. Biological fathershave a dum to support their"illenitimate' children. Se; 513.01 et seq.; In Inierest df Miller, 605 S.<2d 332 (Tex. Civ. GF. - Fort Worth 1980), afT'd, In Interest of J.A.M., 631 S.W.2d 730 --- (Tex. 1982). See also Mil1.s; vi Habluetzel, 456 U.S. 91 (1982);Gomez -- v. Perez, 409U.S. 535 (1973).

"Parent" under the code, however, "does not include a parent as to whom the parent-child relationship has been terminated." You indicate that the children of inmates are usually placed with relatives of the inmate or with foster homes through the Texas Department of Human Services. You do not indicatewhether proceedings have been instituted to imminate, either voluntarily-or involuntarily, the inmate's parental rights. See generally Family Code §§15.041, 15.02 (IuvoluntaryTermination of Parental Rights); B.W.J. v. StateDepartment of Public Welfare, 543 S.W.2d 9 (Tex.Civ. App. - Texarkana 1976, no writ);-In Interest of Guillory, 618 S.W.Zd 948 (Tex. Civ. App. - Houston ['lst Dist.] 1981,no writ); cf. Elliott v. Maddox, 510 S.W.2d 105 (Tex. Civ. App. - Fort Worth 1974, no writ) (although imprisonment of a parent may be evidence of legal grounds for terminationof parental .cights, imprisonmentalone is insufficient to warrant termination of parental rights under section 15.02, particularly when the eve'.~ts leading to the imprisonment occurred prior to the child's bi::t:h). If proceedings are instituted to terminate the mother's parental rights in the child, a simultaneous demand by the state that t'hemother fulfill her financial parental duties could trigger questions under the due process clause of the FourteenthAmendment to the 'UnitedStatesConstitution.
The duty of an inmate-mother to pay for themedical costs of her premature infantmay depend Dnher ability topay. A parent'sduty to supporthis or her childrer. under section 12.04(3)of the Family Code generally depends on his or her ability to contribute to the support of the child. Valaquev. Valaque, 574 S.W.Zd 608, 609 (Tex.Civ.App.

- SanAntonio 1978,no writ). Circumstancesmay existwhich relieve a parent of the generalduty to supporthis or her children. 574 S.W.2d at 610; see also In Interest of Guillory. 618 S.W.2d at 951. As indicated, section 4.02 ofThe Family Code creates a direct cause of action for parties who provide necessaries to the children to whom parents owe support. Necessaries clearly include necessary medical treatment. Although the legal liabilityof parentsunder section 4.02

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to partieswho provide necessarymedical treatment to children is not predicated upon the parents' ability to pay, it will, as a practical matter, determine whether filing suit under section 4.02 is worthwhile. The party to institute suit under section 4.02 is the party that actually provided mcessaries, not the Texas Department of Corrections. If the parents of the child of an inmate are unable to support their child, the #childcould be deemed an indigent for purposes ofmedical care. Lee generallyV.T.C.S. art. 4438f (Indigent Eealth Care and TreatmentA;::).

SUMMARY
The Texas Department of Corrections lacks the authority to ente'rinto a contract to pay the medical costs of an infantborn prematurely to an inmate when .such costs exceed the costs attributable to the inmate-mother.
Both the prir.oner-motherand the father of the child,whethe,clegitimateor illegitimate,are legally liable under section 4.02 of the Texas Family Code to parties who actually provide necessary medical treatment to children to whom the mother and f;ltherowe support. Depending on -theirfinancial ability, they may also be liabie under section 12.'14(3) of the Family Code. 

# dIgJ&tt%

Attorney General of Texas

JACKRIGHTOWER FirstAssistantAttorney General

MARY KELLER ExecutiveAssistantAttorney General

RICK GILPIN Chairman,Opinion Committee Preparedby JenniferRiggs AssistantAttorneyGeneral

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