September 5, 1990
Mr. Dennis R. Jones Opinion No. JM-1216
Commissioner
Texas Department of Mental Re: Whether the Depart-
Health and Mental Retardation ment of Mental Health and
P.O. BOX 12668 Mental Retardation is au-
Austin, Texas 78711 thorized to contract with
the parents of mentally
disabled individuals for
the provision of commu-
nity 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 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:
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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 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 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 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
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 would not be in
violation of Article III, section Texas
Constitution. Attorney General Opinion
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 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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