May 16, 1989
Honorable John Vance Opinion No. JM-1045
Criminal District Attorney
Services Building, Suite 202 Re: Whether a district court
Dallas, Texas 75202 may direct that payment of
costs and expenses in a child
welfare case under section
11.11 of the Family Code be
made from a county's general
fund, and related questions
(RQ-1499)
Dear Mr. Vance:
You ask whether, under section 11.11 of the Family Code
a district court may order payment of costs and expenses
against the general fund of a county, if such costs and
expenses are for the safety and welfare of a child (a for
psychological evaluations and therapy).
You explain that in several cases a family law district
court, on its own motion, appointed the Dallas County Child
Welfare Unit of the Texas Department of Human Services to be
managing conservator of children whose parents had filed for
a divorce. The court also appointed a psychologist to
perform psychological testing and counseling on the children
and ordered that the psychologist be paid out of the Dallas
County General Fund. When the county auditor declined to
pay the bills, the court held hearings, found the parents to
be indigent, and again ordered that the psychologist's bills
be paid out of the general fund.
Section 11.12 of the Family Code authorizes a court
to order the preparation of a social study in any case
affecting the parent-child relationship. We understand from
our reading of McPherson v. McPherson, 626 S.W.2d 349 (Tex.
APP. - Fort Worth 1981, no writ), that the term "social
study" may include psychological evaluation. In Attorney
General Opinion H-362 (1974), this office determined that
fees for the performance of social studies are assessable as
court costs. That opinion is consistent with section
11.18(c) of the Family Code which requires that when the
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Honorable John Vance - Page 2 (JM-1045)
,
Department of Human Services performs a social study, the
fee for the study shall be taxed as costs.
Section 11.18(a) authorizes the court to award costs,
and the award of costs lies within the discretion of the
trial court. see Reames v. Reames, 604 S.W.2d 335 (Civ.
APP. - Dallas 1980, no writ). Generally, costs are not
taxable against one not a party to a suit. In Countv of
Dallas v. Gibbs, 525 S.W.2d 500 (Tex. 1975), the Texas
Supreme Court found that Dallas County had improperly been
ordered to pay ad litem fees. The court said that inasmuch
as the county was "neither an actual nor a nominal party,"
it could not be held liable for costs. Id. at 501. However,
that case is readily distinguishable from those under consi-
deration here, because there was no indication of indigency
in that case. In these cases, the finding of indigency and
the appointment of the Dallas County Child Welfare Unit as
managing conservator give the county an interest in the
suit.
The effect of the filing of an affidavit of inability
to pay or, in these cases a court finding of inability to
pay, is to relieve parties of the obligation to pay the
costs of court. See uenerallv Tex. R. Civ. Proc. 145. The
result of that relief is that the county pays the costs of
court.
Section 11.10(e) of the Family Code requires in cases
regarding the termination of the parent-child relationship
that an attorney appointed to represent indigent children or
parents be paid out of the general funds of the county.
This situation is sufficiently similar to the appointment of
attorneys ad litem and payment of ad litem fees to warrant
payment of the costs out of the county's general fund.
The judge might have more appropriately ordered the
studies to be done by the Department of Human Services1 or
ordered the costs payable out of the Child Welfare Fund (if
Dallas County has one). We believe nevertheless that he
acted within his authority, and the psychologist's fees
1. We note that when the Department "is not a party or
has no interest, the court shall appoint a private agency or
person to conduct the social study." (Emphasis added.)
Fam. Code 5 11.12(b) as amended by Acts 1987, 70th Leg., ch.
1052, § 6.01, at 3571.
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should be paid out of the county's general fund in accor-
dance with the court order.
Having settled your primary question, we can now go
on to answer your supplemental questions, which read as
follows:
Is it necessary to find parents, or other
parties to a suit affecting the parent-child
relationship, to be indigent or unable to pay
costs under Section 11.10 of the Texas Family
Code or other applicable statutes before
payment may be ordered out of the general
fund of the county?
Is it necessary that a child welfare unit
of the Texas Department of Human Services be
made a conservator prior to entry of an order
that the county pay costs out of the general
fund?
A determination of indigency must be made prior to
payment of costs out of a county's general fund. Section
11.10(a) expressly provides that when a court "determines
that the parties or litigants are able to defray the costs
of the ad litem's compensation . . . such costs may be
ordered paid by either or both parties." Subdivision (e) of
that section provides for the payment of such costs out of
the general fund only if indigency is shown. As noted
above, the general rule for all civil~ cases is that liti-
gants, if they are not indigent, pay costs. Countv of
Dallas v. Gibbs, suura; Tex. R. Civ. Proc. 125.
In answer to your third and final question, it is not
necessary that a county child welfare unit be made a con-
servator prior to an order that the county pay costs out of
the general fund. Conservatorship and payment of costs are
two separate issues: indigency is the primary issue in
regard to the payment of costs. We can certainly envision
an instance where a judge would order a social study prior
to the appointment of conservators to help determine the
best interests of a child of indigent parents, in which case
the parents would not be liable for the cost of the social
study or any other court costs.
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Honorable John Vance - Page 4 (JM-1045)
SUMMARY
A family law district judge may order a
county to pay the cost of psychological
testing and counseling of children who are
the subject of divorce where the parents are
found to be indigent. It is necessary to
have a determination of indigency prior to
payment of costs out of a county's general
fund. It is not necessary that a county
child welfare unit be made a conservator
prior to an order that the county pay costs
out of the general fund.
JIM MATTOX
Attorney General of Texas
NARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
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