THE ATTOIRXEY GENERAL 

OF' TEXAS 

December 2, 1986 1 

Mr. 0. L. McCotte? opinion No. 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 

infant born to an inmate 

Dear Mr. McCotter: 

You ask whether the Txas Department of Corrections (hereinafter 

the department) is responsjble for the medical expenses of a premature 

infant born to a prison inuate. You provide the following background: 

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:tatives of 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 the Departnent of Human Services. . . . 

Recently, an infant was born to an inmate some 

three months premature. Because of the premature 

birth, extensive h,Dspitalization has been required 

and it is expected that another 2-3 months intensive care hospitalization will 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 such medical costs. 

Our response to your raquest assumes that you do not question the 

department's constitutional ;and statutory duty to provide inmates with 

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 

p. 2593 
Mr. 0. L. McCotter - Page 2 (m-580) 

delivers prematurely are no less "necessary" than the medical expenses 

of a normal, full-term deliv'ery. Accordingly, this response addresses 

only the liability of the drpartment for the medical expenses attributable solely to the infant. 

No person or agency hclds the authority to make a contract which 

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. State v. 

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 Texas Department of Corrections, together with 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 treatment of prisoners and the classification and separation of 

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 Legisiature has 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 infant born 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, in part, that 

[elxcept as otherwise provided by judicial order 

or by an affidavit of relinquishment of parental 

rights . . . the esrent of a child has. . . . 

. . . . 

(3) the duty to support the child, including 

providing the child with clothing, food, shelter, 

medical care, i1c.d dducation. . . . (Emphasis 

added). 

Thus, "parental" duties clearly include necessary medical care for a 

premature infant. Addition.slly, section 4.02 of the code provides 

that parents are liable to prrsons who provide necessaries to those to 

whom support is owed. 

Section 11.01 of the Family Code states, in part: 

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Mr. 0. L. McCotter - Page 3 (JM-580) 

(3) 'Parent' mans the mother, a man as to 

whom the child is legitimate, or an adoptive 

mother or father, but does not include a parent as 

to whom the parent-child relationship has been 

terminated. 

You do not mention the chi:td's father. Both parents have a statutory 

duty under section 12.04 to support their minor children. Rarrington 

v. State, 547 S.W.2d 616, 619 (Tex. Grim. App. 1977). If the child 

is not legitimate as to ::ts father, the Family Code provides for 

paternity suits and support proceedings. See §13.01 et , se q. Biological fathers have 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, 409 U.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 indicate whether proceedings 

have been instituted to imminate, either voluntarily- or involuntarily, the inmate's parental rights. See generally Family Code 

§§15.041, 15.02 (Iuvoluntary Termination of Parental Rights); B.W.J. 

v. State Department 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 termination of parental .cights, imprisonment alone 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'he mother fulfill her financial parental 

duties could trigger questions under the due process clause of the 

Fourteenth Amendment to the 'United States Constitution. 

The duty of an inmate-mother to pay for the medical costs of her 

premature infant may depend Dn her ability to pay. A parent's duty to 

support his 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. Valaque v. Valaque, 574 S.W.Zd 608, 609 (Tex. Civ. App. 

- San Antonio 1978, no writ). Circumstances may exist which relieve a 

parent of the general duty to support his 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 of The 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 liability of parents under section 4.02 

p. 2595 
Mr. 0. L. M&otter - Page 4 (JM-580) 

to parties who provide necessary medical 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 #child could be deemed an indigent for 

purposes of medical care. Lee generally V.T.C.S. art. 4438f (Indigent 

Eealth Care and Treatment A;::). 

SUMMARY 

The Texas Department of Corrections lacks the 

authority to ente'r into a contract to pay the 

medical costs of an infant born prematurely to an 

inmate when .such costs exceed the costs attributable to the inmate-mother. 

Both the prir.oner-mother and the father of 

the child, whethe,c legitimate or 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;lther owe support. Depending on 

-their financial ability, they may also be liabie 

under section 12.'14(3) of the Family Code. 

dIgJ&tt% 

Attorney General of Texas 

JACK RIGHTOWER 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Jennifer Riggs 

Assistant Attorney General 

p. 2596