September 5, 1990

Mr. Dennis R. Jones Opinion No. JM-1216 Commissioner Texas Department ofMental Re: Whether the DepartHealth andMental Retardation ment ofMental Health and P.O. BOX 12668 Mental Retardation isauAustin, Texas 78711 thorized to contract with the parents ofmentally disabled individuals for the provision of community based mental health services (RQ-1912)

DearMr. Jones:

You askwhether the Texas Department ofMental Health andMental Retardation (hereinafter the "department") may, pursuant to section 2.13 of theMental Health and Mental Retardation Act, V.T.C.S. art. 5547-201, et sec., contract with the parents of amentally 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 inviolation ofArticle III, section 51, of the Texas Constitution.

Section 2.13 of the Mental Health and Mental Retardation Act authorizes the department to

cooperate, negotiate, andcontract with local agencies, hospitals, private organizations and foundations, community centers, physicians andpersons toplan, develop and provide community-based mental health and mental retardation services. (Emphasis added).

-. The term "personsqlasused insection 2.13would include the

parents of a mentally disabled person. V.T.C.S. art. 5547-300, § 3(26).

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Texas lawprovides that the parents ofaminor child must provide the child with clothing, food, shelter, medical care, education, andnecessaries. See aen- Fam. Code 5s 4.02, 11.01, 12.04. Moreover, one is bound to support his children inamanner suitable to their circumstances in life, commensurate with his ability to pay for their support. a Interest ofJ.M. and G.M, 585 S.W.2d 854 (Tex. Civ.App. - SanAntonio 1979, nowrit): 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 [14thDist.] 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 theperformance of services that the parents are not already legally obligated to provide.

It isapparent 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 factquestions which may arise concerning the scope ofaparent's duty toprovide necessaries to achild, we are limited to advising you on matters of law. However, it ispossible to state as a matter of lawthat the provision of clothing, food, shelter, medical care, and education toone's minor child towhom one owes a duty of support is insufficient consideration to support a contract. Inthe case ofan adult client to whom
aparent owes no continuing duty of support, the department may contract with the parent as itwould with any other person.
Section 4.02 of the Family Code provides that parents are liable topersons who provide necessaries to a child to whom support is owed. Section 2.30 of theMental Health andMental Retardation Act provides, inpart:

(a) The Department and each community center has a lien to secure reimbursement for the cost of providing support, maintenance, and treatment to amentally illpatient or mentally retarded client.

(b) The lien attaches to: -,.

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(1) all nonexempt real and personal property owned or later acquired by the mentally ill patient or mentally retarded client orby aperson legally responsible for the support of the patient or client:

. . . . Clearly, the legislature intends that the person responsible for the support ofamentally retarded person be responsible for the department's costs in services. providing

It is anomalous for the department to pay a person forproviding 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 amental 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 amentally disabled person ora familywith amentally disabled member. The statute limits such support paymentsfamily and provides purposes forwhich support may be granted.

Should the department enter into contractual arrangements which are, asamatter of law, not supported by consideration, the department would, ineffect, bemaking a grant to the recipient of anybenefit under that contract. While grants tomentally disabled persons or their families may be constitutional, ifproperly authorized by statute, we find nothing inthe language of section 2.13 of the Mental Health and Retardation Act that suggests that the legislature intended for contracts entered into thereunder tobe grants rather than true contracts. However, where contracts under section 2.13 of theMental Health andMental Retardation Act are supported by sufficient consideration, and sufficient controls aremaintained to ensure the public

1. There are two articles 5547-205. The one discussed herewas originally added byActs 1987, 70th,Leg., ch. 835, 5 1,at 2871, and subsequently amended.

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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 andMental Retardation and the parents ofamentally 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 toprovide.

JIM MATTOX Attorney General of Texas

MARY KKLLER FirstAssistant Attorney General

LouMCcREARY 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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