Can a Texas mental health agency legally pay a parent to provide care to their own mentally disabled child?

Texas AG Opinion JM-1216: Can the State Pay Parents to Care for Their Own Mentally Disabled Child?

Plain-English summary

The Commissioner of the Texas Department of Mental Health and Mental Retardation asked whether the department could contract with the parents of a mentally disabled person to provide community-based mental health and mental retardation services to that person. Section 2.13 of the Mental Health and Mental Retardation Act lets the department contract with "persons" to provide community-based services, and the opinion confirmed parents count as "persons" under the Act.

The Attorney General concluded the answer depends on whether the disabled individual is a minor child or an adult. Texas law already requires parents to provide their minor children with food, shelter, clothing, medical care, education, and other necessaries, and discharging an existing legal duty is not valid consideration for a contract. So a contract that simply pays a parent to do what they are already legally obligated to do for a minor child would not be supported by sufficient consideration, and would effectively be an unconstitutional grant of public money rather than a genuine contract. But because parents generally owe no continuing legal duty of support to an adult child, the department may contract with a parent of an adult client the same way it would contract with any other person. The opinion also found no conflict with the department's separate lien rights for reimbursement, and concluded a properly consideration-backed contract, with adequate controls ensuring a real public purpose, would not violate the constitutional ban on grants of public money.

Currency note

This opinion was issued in 1990. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

The Texas Department of Mental Health and Mental Retardation: The opinion authorized the department to contract with parents of adult mentally disabled clients on the same basis as any other person, but limited contracts involving a minor child's care to services beyond what the parent already owed the child by law.

Parents of mentally disabled minor children served by the department: The opinion meant such parents could not be validly paid under a section 2.13 contract simply for providing the food, shelter, clothing, medical care, or education they were already legally obligated to give their child; any payment would have to cover something beyond that existing duty.

Parents of mentally disabled adult clients: The opinion concluded these parents, who generally owe no continuing legal duty of support, could contract with the department for community-based services on the same footing as any other contracted service provider.

Common questions

Can a Texas state agency legally pay a parent to take care of their own disabled minor child?
Only for services beyond what the law already requires of the parent, according to the opinion. Because Texas law requires parents to provide their minor children with necessaries like food, shelter, and medical care, and discharging an existing legal duty isn't valid consideration for a contract, a contract that just pays for those same baseline obligations would lack sufficient consideration.

Does this rule change once the disabled child becomes an adult?
Yes, according to the opinion. Since parents generally owe no continuing legal duty of support to an adult child (with some statutory exceptions), the department could contract with the parent of an adult client the same way it would contract with any other person, without the same consideration problem.

Would paying a parent who is also legally responsible for reimbursing the department amount to double-dealing?
The opinion flagged this as "anomalous," noting the Mental Health and Mental Retardation Act gives the department a lien against a legally responsible person's property to secure reimbursement for services, so paying that same person for providing services could work at cross purposes with the reimbursement scheme, reinforcing why any such contract needs to be for genuinely additional services, not a substitute for the parent's own support or reimbursement obligations.

Would these contracts violate the Texas Constitution's ban on giving public money to private individuals?
Not if properly structured, according to the opinion. Article III, section 51 generally bars grants of public money to individuals, but the opinion found that a contract genuinely supported by sufficient consideration, with adequate controls ensuring the public purpose is achieved, would be a true contract rather than a disguised grant, and so would not violate that provision.

Background and statutory framework

Section 2.13 of the Mental Health and Mental Retardation Act, V.T.C.S. art. 5547-201 et seq., authorizes the department to cooperate, negotiate, and contract with local agencies, hospitals, private organizations, community centers, physicians, and "persons" to plan, develop, and provide community-based mental health and mental retardation services; the Act's definitions confirm "persons" includes parents. Texas family law separately requires parents to provide minor children with clothing, food, shelter, medical care, education, and other necessaries, and generally (with limited statutory exceptions) does not extend that duty to adult children.

Applying the basic contract-law principle that discharging an existing legal duty is not valid consideration, citing Martens v. Prairie Producing Co., the opinion concluded a contract paying a parent for care they were already legally obligated to provide a minor child would fail for lack of consideration. The opinion also flagged tension with section 2.30 of the Mental Health and Mental Retardation Act, which gives the department and local community centers a lien against a legally responsible person's property to secure reimbursement for the cost of services, reasoning it would be "anomalous" for the department to pay a person for services when that same person is separately liable to reimburse the department for those services. On the constitutional question, the opinion noted article III, section 51 of the Texas Constitution generally bars grants of public money to private individuals, but that section 51-a expressly authorizes legislative assistance grants to needy dependent children, their caretakers, and persons who are totally and permanently disabled due to a mental handicap, and that a separate statute (article 5547-205) already authorizes direct support payments to mentally disabled persons or their families within defined limits. The opinion found nothing in section 2.13 suggesting the legislature intended contracts under that section to function as grants rather than genuine contracts, so a contract genuinely supported by sufficient consideration, with adequate controls to ensure the public purpose was achieved, would not run afoul of the constitutional prohibition.

Citations

Statutes:

• V.T.C.S. art. 5547-201 (Mental Health and Mental Retardation Act)
• V.T.C.S. art. 5547-205 (support payments to mentally disabled persons or their families)
• V.T.C.S. art. 5547-300, § 3(26) (definition of "persons")
• Tex. Fam. Code § 4.02 (parental duty of support; liability to those providing necessaries)
• Tex. Fam. Code § 11.01 (parent-child relationship, generally)
• Tex. Fam. Code § 12.04 (parental rights and duties)
• Tex. Fam. Code § 14.05(b) (support obligations, exceptions)
• Tex. Fam. Code § 14.051 (support obligations, exceptions)
• Tex. Const. art. III, § 51 (prohibition on grants of public money to individuals)
• Tex. Const. art. III, § 51-a (authorized assistance grants, including for mentally disabled persons)

Cases:

• In Interest of J.M. and G.M., 585 S.W.2d 854 (Tex. Civ. App. - San Antonio 1979, no writ)
• Martens v. Prairie Producing Co., 668 S.W.2d 889 (Tex. Civ. App. - Houston [14th Dist.] 1984, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1216
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1216.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

September 5, 1990

Mr. Dennis R. Jones
Commissioner
Texas Department of Mental Health and Mental Retardation
P.O. Box 12668
Austin, Texas 78711

Opinion No. JM-1216

Re: Whether the Department of Mental Health and Mental Retardation is authorized 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 seq., 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 "persons" as used in section 2.13 would include the parents of a mentally disabled person. V.T.C.S. art. 5547-300, § 3(26).

Texas law provides that the parents of a minor child must provide the child with clothing, food, shelter, medical care, education, and necessaries. See generally Fam. Code §§ 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. In 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. See 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. Prairie Producing 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 vary somewhat according to the circumstances of 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:

(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 providing services. 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, the granting of public money to private individuals. 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 5547-205 of the Mental Health and Mental Retardation Act, V.T.C.S. art. 5547-205,¹ for example, provides that the department may award support to a mentally disabled person or a family with a mentally disabled family member. The statute limits such support payments 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 purpose is achieved, such contracts would not be in violation of Article III, section 51, of the Texas Constitution.

SUMMARY

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 KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by John Steiner
Assistant Attorney General