Can Mississippi's child-protection agency spend its state funds to buy a parent a car or pay private-school tuition for a child in state custody?

Plain-English summary

The Mississippi Department of Child Protection Services (MDCPS) commissioner asked the AG whether state funds could be used for two specific kinds of supportive expenditure:

1. Buying a vehicle (or other personal property) for the parent of a child in MDCPS custody.
2. Paying private school tuition and room and board for a child in state custody.

Both expenditures might be reasonable as part of a reunification plan or to meet the educational needs of a child whose home circumstances are not safe. But the AG's analysis is doctrinal, not policy-driven. The questions are: (a) does MDCPS have specific statutory authority for the expenditure, and (b) without specific authority, would the expenditure violate Article 4, Section 66 of the Mississippi Constitution (which bars donations and gratuities not specifically authorized by law)?

The AG's answer for the period before July 1, 2023:

• MDCPS does not have unrestricted, broad spending authority.
• State law does not specifically authorize either expenditure.
• Section 43-15-17 authorizes MDCPS to make payments for "supportive services to facilitate either the return of children to their natural parents or their adoption." Whether that section authorizes a vehicle purchase or private school tuition is fact-specific, and the AG declined to opine.
• Section 37-23-77 authorizes some education funding for "exceptional children" with mental or physical conditions. The AG noted this exists but the question did not implicate it.
• Without specific authority, both expenditures would violate Section 66.

For the period starting July 1, 2023:

• House Bill 1149 (2023 Regular Session) makes MDCPS an independent agency and broadens its powers. Specifically, MDCPS will have authority to "expend funds appropriated to the department to carry out the duties and responsibilities assigned to the department by law" and to provide "basic services and assistance statewide to needy and disadvantaged individuals and families."
• Once HB 1149 takes effect, MDCPS may use state funds for the proposed purposes "if MDCPS makes a factual determination that doing so would carry out the duties and responsibilities assigned to it by law."
• The factual determination is fact-specific and outside the AG's official-opinion remit.

So the answer changes between the pre-July 1 and post-July 1 timeframe.

What this means for you

If you're MDCPS leadership

Pre-HB 1149 (before July 1, 2023): no statutory authority to use general state funds for parent vehicle purchases or private school tuition. Routes that may still work:

• Federal and Title IV-E funds: Different rules apply. Some federal funding streams permit broader spending. Confirm with your federal grants compliance office.
• Section 43-15-17 supportive services: Available for reunification and adoption-facilitating expenditures. Need a fact-specific determination tying the expenditure to facilitation. Document carefully.
• Section 37-23-77: For exceptional children with mental/physical conditions, education funding is specifically authorized. Different population than the general question raised.

Post-HB 1149 (July 1, 2023 and after): broader authority. To use state funds for novel expenditures, MDCPS must:
1. Make a factual determination that the expenditure carries out duties and responsibilities assigned by law.
2. Document the determination in writing.
3. Tie the expenditure to specific listed duties: providing basic services to needy/disadvantaged individuals and families, employing personnel and expending appropriated funds, integrating service delivery, etc.
4. Be prepared to defend the determination against state-auditor scrutiny. The AG's opinion notes that the factual determination is up to MDCPS, not the AG, but a thinly-supported determination is exposed.

If you're a Mississippi foster parent or biological parent

This opinion explains why MDCPS sometimes says "we don't have authority for that." Before July 2023, MDCPS's general authority was much narrower than people often assumed. Even basic supports like transportation help for parents trying to maintain employment during a reunification plan were legally awkward.

After July 2023, MDCPS has more flexibility. If you have specific needs that MDCPS could plausibly meet under its broadened authority, ask explicitly and document the request. If denied, the denial should now be based on case-specific factors, not blanket "we have no authority."

If you're a state legislator or appropriations staff

HB 1149 was a structural reform. By making MDCPS independent and broadening its mandate, the legislature delegated more discretion to the agency. The trade-off: you have less line-item control over specific expenditure types, and the agency now has to make defensible determinations in real time about which expenditures fit its duties.

If you want to control MDCPS spending more tightly post-HB 1149, the path is targeted statutory direction or specific appropriation line items, not blanket prohibitions.

If you're a state auditor field examiner

The pre-HB 1149 baseline was that MDCPS expenditures must connect to specific statutory authority. Post-HB 1149, MDCPS has broader spending authority, but each unusual expenditure should be supported by a documented factual determination that the spending "carries out duties and responsibilities assigned by law." Look for the determination, not just the expense.

If you're a child welfare attorney

This opinion is useful for understanding the constitutional and statutory framework MDCPS operates under. Section 66 is the constitutional ceiling; specific statutes are the authorizing floor; HB 1149 raised the floor for MDCPS specifically. When advocating for a specific support for a client family, frame the ask in terms of MDCPS's statutory duties (not as charitable aid).

Common questions

Q: What was MDCPS's status before HB 1149?
A: Before July 1, 2023, MDCPS was a subagency of the Mississippi Department of Human Services. Its spending authority was narrower than the parent department's, and limited to its specific statutory mandates around child protection and foster care.

Q: What changed with HB 1149?
A: MDCPS became an independent state agency. Its powers were expanded to include adopting policy, applying for federal/state/private funding, entering contracts, and providing "basic services and assistance statewide to needy and disadvantaged individuals and families." The expanded grant of authority lets MDCPS make case-specific judgments about what expenditures fit its mission.

Q: What is Section 66 of the Mississippi Constitution?
A: It prohibits laws granting donations or gratuities except by two-thirds vote of each chamber of the legislature. Without specific statutory authority, expenditures of public funds for what looks like private benefit are donations.

Q: Why didn't Section 96 apply?
A: Section 96 governs gratuities to public officers, agents, servants, or contractors. The AG noted that it is not applicable to children in state custody or parents of children in state custody. Section 66 is the operative provision.

Q: Can MDCPS pay for a child's tuition at a public school?
A: Tuition for public school attendance is generally not an issue; public schools serve all children at public expense. The question here was specifically private school tuition. Section 37-23-77 has narrow exceptions for exceptional children.

Q: What is Section 43-15-17 and how does it relate?
A: Section 43-15-17 authorizes MDCPS to make supportive-service payments to facilitate the return of children to natural parents or to facilitate adoption. It is fact-specific in application. Whether a vehicle purchase or private school tuition fits as "supportive services" is a factual determination outside the AG's official-opinion remit.

Q: Is there MDCPS authority to pay for transportation to parent visits?
A: That is a more typical "supportive services" scenario under Section 43-15-17 and is generally allowed. The opinion did not address it directly. The vehicle-purchase question is different because it involves transferring an asset to a parent, not just funding transportation.

Background and statutory framework

Mississippi child protection law sits at an intersection of state administrative law, constitutional restrictions on donations, and federal Title IV-E and Title IV-B funding requirements. The state-funds question this opinion addresses is narrower than the federal-funding question.

Article 4, Section 66 sets the constitutional floor. Spending public funds for what amounts to private benefit (a vehicle for an individual parent, tuition for a specific child at a private school) requires specific statutory authorization. Without it, the expenditure is a donation.

Pre-2023, MDCPS's authorizing statutes were targeted: foster care payments, kinship care payments, supportive services for reunification or adoption, certain education-related authorities for exceptional children, etc. The agency could spend within those buckets but did not have a general "do whatever serves child welfare" authority.

HB 1149 (2023) restructured MDCPS as an independent agency under § 43-26-1 and broadened its mandate. The new (3) and (7) provisions of § 43-26-1 give MDCPS general authority to provide services to "needy and disadvantaged individuals and families" and to expend funds to carry out its duties. This is a significant constitutional bridging move: by attaching specific statutory duties to broad spending authority, the legislature provided the "specifically authorized by law" predicate that Section 66 requires.

The AG's careful framing on the post-HB 1149 question, requiring MDCPS to make a factual determination that the expenditure carries out duties, prevents the new authority from collapsing into a blank check. Each unusual expenditure must be linked to a specific statutory duty in MDCPS's expanded mandate.

Citations and references

Statutes and constitutional provisions:
- Miss. Code Ann. § 7-5-25 (AG opinion authority)
- Miss. Code Ann. § 37-7-301(s) (school activity fund use)
- Miss. Code Ann. § 37-23-61, 37-23-63, 37-23-77 (exceptional children education funding)
- Miss. Code Ann. § 37-29-67(1) (community college board authority)
- Miss. Code Ann. § 43-15-17 (MDCPS supportive services payments)
- Miss. Code Ann. § 43-26-1 (MDCPS, as amended by HB 1149)
- Miss. Const. § 66 (donation prohibition)
- Miss. Const. § 96 (gratuity to public officers prohibition)

Legislation:
- House Bill 1149, 2023 Regular Session (effective July 1, 2023), making MDCPS an independent agency and amending § 43-26-1

Prior AG opinions referenced:
- MS AG Op., Rodolfich (July 31, 2020)
- MS AG Op., Brown (Oct. 6, 2006)
- MS AG Op., Barton (May 17, 2021)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/A.Sanders-May-19-2023-Utilization-of-Mississippi-Department-of-Child-Protection-Services-State-Funds.pdf

Original opinion text

May 19, 2023

Andrea Sanders, Commissioner
Mississippi Department of Child Protection Services
Post Office Box 346
Jackson, Mississippi 39205

Re: Utilization of Mississippi Department of Child Protection Services' State Funds

Dear Commissioner Sanders:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, you are seeking an official opinion on whether Mississippi Department of Child Protection Services' state funds may be used for certain purposes without violating Sections 66 or 96 of the Mississippi Constitution or any other Mississippi law.

Questions Presented

1. May the Mississippi Department of Child Protection Services' state funds be utilized to purchase a vehicle or other personal property for the parent of a child in the agency's custody?

2. May the Mississippi Department of Child Protection Services' state funds be utilized to pay private school tuition, and room and board, on behalf of a child in state custody?

Brief Response

1. State law does not currently provide the Mississippi Department of Child Protection Services with unrestricted, broad authority to use its state funding. Therefore, absent specific authority based on the pertinent circumstances, using Mississippi Department of Child Protection Services' state funds to purchase a vehicle or other personal property for the parent of a child in the agency's custody would be a violation of Section 66 of the Mississippi Constitution.

2. State law does not currently provide the Mississippi Department of Child Protection Services with unrestricted, broad authority to use its state funding. Therefore, absent specific authority based on the pertinent circumstances, using Mississippi Department of Child Protection Services' state funds to pay private school tuition, and room and board, on behalf of a child in state custody would be a violation of Section 66 of the Mississippi Constitution.

Applicable Law and Discussion

Your request asks whether Mississippi Department of Child Protection Services' (MDCPS) state funds may be used for certain purposes without violating Sections 66 or 96 of the Mississippi Constitution or other Mississippi law. Article IV, Section 96 is not applicable to this matter as it only pertains to donations to public officers, agents, servants, or contractors, not children in state custody or parents of children in state custody. However, Article IV, Section 66 of the Mississippi Constitution provides, "[n]o law granting a donation or gratuity in favor of any person or object shall be enacted except by the concurrence of two-thirds of the members elect of each branch of the Legislature, nor by any vote for a sectarian purpose or use." See also MS AG Op., Rodolfich at 1 (July 31, 2020); MS AG Op., Brown at 1 (Oct. 6, 2006) ("Section 66 . . . prohibits donations which are not specifically authorized by law.").

In other opinions where this office has considered a potential violation of Section 66, we looked to the relevant state law that could be applicable in authorizing the proposed use of funds. See Rodolfich at *2. In Rodolfich, we noted that community colleges were authorized to expend funds to provide awards to individuals with outstanding performance based on the community colleges' broad authority set forth in Section 37-29-67(1) of the Mississippi Code, which provides:

Subject to the provisions of Sections 37-29-1 through 37-29-273, the board shall have full power to do all things necessary to the successful operation of the district and the college or colleges or attendance centers located therein to insure educational advantages and opportunities to all the enrollees within the district.

(Emphasis added). We then juxtaposed such broad authority to the limited authority granted to school districts in Section 37-7-301(s), which sets forth:

Activity funds may only be expended for any necessary expenses or travel costs, including advances, incurred by students and their chaperons [sic] in attending any in-state or out-of-state school-related programs, conventions or seminars and/or any commodities, equipment, travel expenses, purchased services or school supplies which the local school governing board, in its discretion, shall deem beneficial to the official or extracurricular programs of the district, including items which may subsequently become the personal property of individuals, including yearbooks, athletic apparel, book covers and trophies . . . .

We therefore concluded that a public school district could not offer monetary incentives to students based upon their prospective performance on the ACT. See Rodolfich at *2 ("It is the opinion of this office that monetary awards for prospective ACT Test performance do not constitute 'commodities, equipment, travel expenses, purchased services or school supplies' as contemplated by Section 37-7-301(s).").

Applying this logic to the matter at hand, we note that state law does not currently provide MDCPS with unrestricted, broad authority to use its state funding. State law does not speak to MDCPS's authorization to use its state funds to purchase a vehicle or other personal property for the parent of a child in the agency's custody. Likewise, state law does not speak to MDCPS's authorization to use its state funds to pay private school tuition and room and board, on behalf of a child in state custody. More specific provisions, however, may apply in some circumstances.

For example, Section 37-23-77 —applying exclusively to children with mental or physical conditions as set forth in Sections 37-23-61 and 37-23-63— does in some instances provide state funding for education for children under the legal guardianship of the State Department of Human Services, or any other state agency. However, because your request does not inquire about circumstances regarding "exceptional children," this opinion does not fully consider, and should not be considered applicable to, the specific group of children contemplated by Section 37-23-77.

Section 43-15-17 could also potentially be applicable. Section 43-15-17, regarding "[s]upportive services payments authorized," sets forth:

(1) The Department of Child Protection Services is authorized to make such payments as may be appropriate for supportive services to facilitate either the return of children to their natural parents or their adoption, depending upon and contingent upon the availability of the Department of Child Protection Services securing or having sufficient funds to render this supportive service. Upon court order, the parent(s) shall be responsible for reimbursing the department for any foster care or kinship care payments made on behalf of his or her child, based upon financial ability to pay, until such time as there is a termination of parental rights regarding the child, or the child is adopted.

Because this provision does not provide specific allowances (like Section 37-7-301(s)) but does provide specific facilitation requirements, i.e., "supportive services to facilitate either the return of children to their natural parents or their adoption," a determination of whether this provision would apply to any particular circumstances would ultimately be a question of fact. Pursuant to Section 7-5-25, this office may not address questions of fact. See also MS AG Op., Barton at *2 n.2 (May 17, 2021).

Nonetheless, based on the specific questions presented and information provided in your subject request, it is the opinion of this office that, as it currently stands, state law does not generally authorize the use of MDCPS funds to (1) purchase a vehicle or other personal property for the parent of a child in the agency's custody or (2) pay private school tuition, and room and board, on behalf of a child in state custody. Such uses would be a violation of Section 66 of the Mississippi Constitution.

However, in the 2023 Regular Session, the Legislature passed House Bill 1149 ("H.B. 1149"), which makes MDCPS an independent agency rather than a subagency of the Department of Human Services and, among other things, amends MDCPS's powers and duties. The act takes effect July 1, 2023. While H.B. 1149 is not retroactive, it will change MDCPS's spending authority moving forward. Relevant to your request, H.B. 1149 provides, in part:

(3) The Department of Child Protection Services shall provide the services authorized by law to every individual determined to be eligible therefor, and in carrying out the purposes of the department, the commissioner is authorized:

(a) To formulate the policy of the department regarding child welfare services within the jurisdiction of the department;

(b) To adopt, modify, repeal and promulgate, after due notice and hearing, and where not otherwise prohibited by federal or state law, to make exceptions to and grant exemptions and variances from, and to enforce rules and regulations implementing or effectuating the powers and duties of the department under any and all statutes within the department's jurisdiction;

(c) To apply for, receive and expend any federal or state funds or contributions, gifts, devises, bequests or funds from any other source;

(d) To enter into and execute contracts, grants and cooperative agreements with any federal or state agency or subdivision thereof, or any public or private institution located inside or outside the State of Mississippi, or any person, corporation or association in connection with carrying out the programs of the department; and

(e) To discharge such other duties, responsibilities, and powers as are necessary to implement the programs of the department.

...

(7) The Department of Child Protection Services shall have the following powers and duties:

(a) To provide basic services and assistance statewide to needy and disadvantaged individuals and families;

(b) To promote integration of the many services and programs within its jurisdiction at the client level thus improving the efficiency and effectiveness of service delivery and providing easier access to clients;

(c) To employ personnel and expend funds appropriated to the department to carry out the duties and responsibilities assigned to the department by law . . . .

(Emphasis added) (amending Miss. Code Ann. § 43-26-1).

As shown, H.B. 1149 still does not authorize MDCPS to use funds for the specific purposes about which MDCPS has inquired —i.e., to purchase a vehicle for a parent of a child in state custody and to pay private school tuition, room, and board. However, it does provide MDCPS with general, broad authority to use its funding, including its state funding, to carry out its duties and responsibilities. See id. ("The Department of Child Protection Services shall have the following powers and duties: (a) to provide basic service and assistance statewide to needy and disadvantaged individuals and families; . . . [and] (c) to . . . expend funds appropriated to the department to carry out the duties and responsibilities assigned to the department by law . . . .").

It is therefore the opinion of this office that once House Bill 1149 takes effect on July 1, 2023, MDCPS may utilize its state funding to purchase a vehicle for a parent of a child in state custody or to pay private school tuition, room, and board for a child in state custody without violating Section 66, if MDCPS makes a factual determination that doing so would "carry out the duties and responsibilities assigned to [it] by law." As stated supra, such a determination would ultimately be a determination of fact, on which this office may not opine. Miss. Code Ann. § 7-5-25.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General