September 5, 1990 

Mr. Dennis R. Jones Opinion No. JM-1216 

Commissioner 

Texas Department of Mental Re: Whether the DepartHealth and Mental Retardation ment of Mental Health and 

P.O. BOX 12668 Mental Retardation is auAustin, Texas 78711 thorized to contract with 

the parents of mentally 

disabled individuals for 

the provision of community based mental health 

services (RQ-1912) 

Dear Mr. Jones: 

You ask whether the Texas Department of Mental Health 

and Mental Retardation (hereinafter the "department") may, 

pursuant to section 2.13 of the Mental Health and Mental 

Retardation Act, V.T.C.S. art. 5547-201, et sec., contract 

with the parents of a mentally disabled person served by the 

department for the provision of community-based mental 

health and mental retardation services to that mentally 

disabled person. Specifically, YOU ask whether such 

contracts would (1) be supported by sufficient 

consideration, (2) be inconsistent with a parent's 

obligation to reimburse the department for the cost of 

providing services, or (3) be in violation of Article III, 

section 51, of the Texas Constitution. 

Section 2.13 of the Mental Health and Mental 

Retardation Act authorizes the department to 

cooperate, negotiate, and contract with local 

agencies, hospitals, private organizations 

and foundations, community centers, 

physicians and persons to plan, develop and 

provide community-based mental health and 

mental retardation services. (Emphasis 

added). 

-. 

The term "personsql as used in section 2.13 would include the 

parents of a mentally disabled person. V.T.C.S. art. 

5547-300, § 3(26). 

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Mr. Dennis R. Jones - Page 2 (JM-1216) 

Texas law provides that the parents of a minor child 

must provide the child with clothing, food, shelter, medical 

care, education, and necessaries. See aen- Fam. Code 

5s 4.02, 11.01, 12.04. Moreover, one is bound to support 

his children in a manner suitable to their circumstances in 

life, commensurate with his ability to pay for their 

support. a Interest of J.M. and G.M, 585 S.W.2d 854 (Tex. 

Civ. App. - San Antonio 1979, no writ): Ordinarily, one is 

not obligated to support an adult child, but there are 

exceptions. &$8 Fam. Code §§ 4.02, 14.05(b), 14.051. 

Consideration is, of course, a fundamental element of a 

valid contract. Discharge of a legal duty is not 

. . consideration. Martens v. Prarrie Producina CO ., 668 S.W.2d 

889 (Tex. Civ. App. - Houston [14th Dist.] 1984, no writ). 

Therefore, any contract between the department and the 

parents of a mentally disabled person, in order to be 

supported by sufficient consideration on the part of the 

parents, must be for the performance of services that the 

parents are not already legally obligated to provide. 

It is apparent that the scope and extent of a parent's 

duty to provide support may 

circumstances of 

vary somewhat according to the 

each individual situation. Because this 

opinion cannot anticipate or resolve fact questions which 

may arise concerning the scope of a parent's duty to provide 

necessaries to a child, we are limited to advising you on 

matters of law. However, it is possible to state as a 

matter of law that the provision of clothing, food, shelter, 

medical care, and education to one's minor child to whom one 

owes a duty of support is insufficient consideration to 

support a contract. In the case of an adult client to whom 

a parent owes no continuing duty of support, the department 

may contract with the parent as it would with any other 

person. 

Section 4.02 of the Family Code provides that parents 

are liable to persons who provide necessaries to a child to 

whom support is owed. Section 2.30 of the Mental Health 

and Mental Retardation Act provides, in part: 

(a) The Department and each community 

center has a lien to secure reimbursement for 

the cost of providing support, maintenance, 

and treatment to a mentally ill patient or 

mentally retarded client. 

(b) The lien attaches to: 

-,. 

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Mr. Dennis R. Jones - Page 3 (JM-1216) 

(1) all nonexempt real and personal 

property owned or later acquired by the 

mentally ill patient or mentally retarded 

client or by a person legally responsible for 

the support of the patient or client: 

. . . . 

Clearly, the legislature intends that the person 

responsible for the support of a mentally retarded person be 

responsible for the department's costs in 

services. 

providing 

It is anomalous for the department to pay a 

person for providing services when that person is, in turn, 

responsible to the department for the cost of those 

services. 

Article III, section 51, of the Texas Constitution 

prohibits, generally, 

private individuals. 

the granting of public money to 

However, Article III, section 51-a, of 

the Texas Constitution expressly permits the legislature to 

provide assistance grants to, among others, needy dependent 

children, the caretakers of such children, and needy persons 

who are totally and permanently disabled because of a mental 

handicap. Article 5 of the Mental Health and Mental 

Retardation Act, V.T.C.S. art. 5547-205,l for example, 

provides that the department may award support to a mentally 

disabled person or a family with a mentally disabled 

member. The statute limits such support payments 

family 

and 

provides purposes for which support may be granted. 

Should the department enter into contractual 

arrangements which are, as a matter of law, not supported by 

consideration, the department would, in effect, be making a 

grant to the recipient of any benefit under that contract. 

While grants to mentally disabled persons or their families 

may be constitutional, if properly authorized by statute, we 

find nothing in the language of section 2.13 of the Mental 

Health and Retardation Act that suggests that the 

legislature intended for contracts entered into thereunder 

to be grants rather than true contracts. However, where 

contracts under section 2.13 of the Mental Health and Mental 

Retardation Act are supported by sufficient consideration, 

and sufficient controls are maintained to ensure the public 

1. There are two articles 5547-205. The one discussed 

here was originally added by Acts 1987, 70th,Leg., ch. 835, 

5 1, at 2871, and subsequently amended. 

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Mr. Dennis R. Jones - Page 4 (~~-1216) 

purpose is achieved, such contracts 

violation of Article III, section 

Constitution. Attorney General Opinion 

SUMMARY 

would not be in 

Texas 

Any contract between the Department of 

Mental Health and Mental Retardation and the 

parents of a mentally disabled person for the 

provision of community-based mental health 

and mental retardation services to that 

mentally disabled person, in order to be 

supported by sufficient consideration on the 

part of the parents, must be for the 

performance of services that the parents are 

not already legally obligated to provide. 

JIM MATTOX 

Attorney General of Texas 

MARY KKLLER 

First Assistant Attorney General 

Lou MCcREARY 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLKY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by John Steiner 

Assistant Attorney General 

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