The Attorney General of Texas
December 19, 1979
MARK WHITE
Attorney General
Honor&& Ron Jackson Opinion No. ~~-165
Texas Youth Coundl
8900 Shoal Creek Boulevard Rex Whether the Texas Youth
Austin, Texas 78766 Council may provide medical set-
vices to its war& without parental
consent
Dear Mr. Jacksom
You have asked several questions concerning the authority of the
Texas Youth Council (hereinafter TYC) to provide medical services to its
wards under three different but overlapping sets of circumstances:
(1) When parents have not responded to a request
for consent;
(2) When parents have expressly refused their
consent;
(3) When the patient has refused consent
Title 2 of the Texas Family Code deals with the parent-child
relationship, and Title 3 establishes procedures for dealing with delinquents,
Like Title 2, Title 3 contemplates the removal of children from their home
by the power of the state. Compare Chapters 15 and 17 of Title 2, with
Chapters 51, 52, 53 and 54 of Title 3. Unlike Title 2, Title 3 does not
specifically indicate the manner in which the substantive rights of a parent
are altered by a proceeding in which the state takes cllstody of the child
Compare Chapters 12 and 14 of Title 2 with section 54.04 of Title 3. Yet the
parent-child relationship is necessarily altered by any disposition under
section 54.04.
Section 12.04 states:
Except as otherwise provided by judicial order or
by an affidavit of relinquishment of parental rights
executed under Section 15.03 of this code, the parent
of a child has the following rights, privileges, duties,
and powers
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(1) the right to have physical possession of the child and to
establish its legal domicile;
(2) the duty of care, control, protection, moral and religious
training, and reasonable discipline of the child;
(3) the duty to support the child, including providing the child
with clothing, food shelter, medical care, and education;
(4) the duty to manage the estate of the child, except when a
guardian of the estate has been appointee
(5) the rieht to the services and earninus of the child;
(6) the p:wer to consent to marriage, to enlistment in the
armed forces of the United States, and to medical, psychiatric, and
surgical treatment;
(7) the power to represent the child in legal action and to
make other decisions of-substantial legal signif&nce concerning
the child;
(8) the power to receive and give receipt for payments for the
support of the child and to hold or disburse any funds for the
benefit of the child;
(9) the right to inherit from and through the child; and
(10) any other right, privilege, duty, or power existing between
a parent and child by virtue of law.
(Emphasis added. Under section 54.04(d) of the Family Code, a child may be placed
(1) . . . on probation on such reasonable and lawful terms as the
court may determine for a period not to exceed one year, subject
to extensions not to exceed one year each:
(A) in his own home or in the custody of a relative or
other fit person;
(B) in a suitable foster home; or
(0 in a suitable public or private institution or
agency except the Texas Youth Council; or
(2) if the court or jury found at the conclusion of the adjudica-
tion hearing that the child eqpsged in delinquent conduct, the court
may commit the child to the Texas Youth CounciL
A simple rearing of this section shows that, under any possible disposition, parental rights
as defined in section 12.04 are altered Each possible disposition alters the rights in
different ways. Any disposition provides at the least that the court assumes the duty of
care, contrcd, protection, and reasonable discipline of the child. Placing the child with a
relative temporarily extinguishes the parent’s right to have physical possession of the
child. The placing of a child with TYC is obviously the disposition which most thoroughly
alters the rights, privileges, duties, and powers of a parent However, no mention of the
different alterations of the parental powers and duties is made in the Texas Family Code.
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One reacing of the law would give TYC very broad powers as a result of a court’s
commitment of a child to its care. Section 5102(3) of the Family Code defines guardian”
as
the person who, under court order, is the guardian of the person of
the child or the public or private agency with whom the child has
been placed by a coup t
This plainly makes TYC the guardian of a child committed to it under section 54.04 of the
Family Code. Title 2 of the Family Code does not define “guardian” as a term of art but
does define the term “managing conservator,” in section 14.02. In the context of the
Probate Code, it has been squarely held that guardianship and managing conservatorship
are the same. Guardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App. -- Cotpus Christi
1977, writ ref’d n.r.e.1. However, the definition of managing conservator in the Family
Code seems specially designed to deal with the problems raised in a divorce. This reading
would give TYC far more power over -its wards than we believe the legislature
contemplated We therefore rest our opinion on other grouncb.
TYC originated with the Gatesville School for Boys in 1869. From that date until the
present TYC and its predecessors have provided medical services of all sorts to the
juveniles committed to its care with only the most general authorization. For instance,
Acts 1913, 33rd Leg., lst C.S., ch. 6, SS 12,13, at 7, provided:
The superintendent shall divide the inmates into such classes and
shall house, feed and train them in such manner as he deems best
for the development and advancement of the child. All inmates
shall be provided with shelter, wholesome food and suitable
clothing, books, means of healthful recreation and other material
necessary for their training, at the expense of the state, except as
otherwise provided by law.
This statute was the sole authority for education, housing, medical care and other
treatment of juveniles from its enactment until 1949. It is still on the books as V.T.C.S.
article 5129. That medical care was authorized by this very general language, and that the
legislature in fact was aware that such medical care was provided, is demonstrated by the
reference to a “resident nurse” in Acts 1913, 1st C.S., 33rd Leg., ch. 6, S 15, at 7. The
section was amended slightly and the words “school physician” were substituted for
“resident nurse” in 1945. Acts 1945, 49th Leg., ch. 247, S 1, at 385.
In 1949, the state legislature transferred the control of the State Training Schools,
including the Gatesville School for boys, from the Board of Control to a newly created
State Youth Development Council, V.T.C.S. art 5143c, and in 1957, to TYC. V.T.C.S. art.
5143d. In each ease it was specifically provided that the new agency would succeed to all
the powers and rights of its predecessor. Art. 5143q S 6; art 51434 S 5(c).
The 1949 legislation concerning juveniles was an attempt by the legislature to
organize and modernize the system of State Training Schools. The great bulk of article
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5143c, the major 1949 statute, is devoted to laying out a blueprint for the organization of
state administrative and judicial procedures dealing with juveniles. Several sections of
the law also address the authority of the newly created state agency to deal with its
war&. It seems clear from the fact that the original section which granted similar
authority, article 5129, was not repealed that the provisions of article 5143~ were meant
merely to elucidate and not to limit the powers of the state agency.
The new sections addressed the iszie in language somewhat more specific than the
old, but still very generaL For example, article 5143c, section 1 stated that the purpose of
the act was to develop
in all children the spiritual, mental, and physical resources
necessary for complete citizenship responsibility and participa-
tion . . .
Section 2 of the article provided significantly for the purposes of interpretation,
This Act shall be liberally construed to accomplish the purpose
herein sought.
(Emphasis added. It was also provided in section 19 of article 5143~ that:
As a means of correcting the socially harmful tendencies of a child
committed to it, the Council may:
. ...
(b) Require such modes of life and conduct as seem best adapted
to fit him for return to full liberty without daqer to the public;
(cl Provide such medical or psychiatric treatment as is
necessary; . . .
Article 5143c, section 26(a) contains evidence that the legislature considered medical care
and treatment of its wards to be among the responsibilities of the agency. It provides
that:
For the purpose of carrying out its duties, the Council is authorized
to make use of law enforcement, detention, supervisory, medical,
educational, correctional, segregative, and other facilities,
institutions and agencies, within the State. . . .
In addition to these very broad guidelines, the agency was given extensive rule-making
powers, article 5143+ section 22; and the power to order a child’s confinement “under such
conditions as it believes best designed for his welfare and the interests of the public,”
article 5143c, S 18. The 1957 legislation reorganized the system again, but left the
substantive provisions quoted above virtually intact.
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Honorable Ron Jackson - Page Five (MW-105)
Summarizing the historical grant of authority to TYC and its predecessors, we
conclude that this authority was broad indeed. Prior to 1949 it plainly included the power
to consent to medical care Nothing in the 1949 and 1957 enactments changed that. When
an emergency situation required hospitalization of a TYC ward, the superintendent of the
school signed the hospital’s consent form. For most matters, however, no consent form
was required because most ordinary medical care was provided by the schools themselves.
Every TYC institution has and has had for many years a staff physician, a staff dentist, a
staff psychiatrist and a staff of several nurses.
When the legislature enacted the Family Code, it did not repeal any section of
article 5143d. On the contrary, the statement of purpose in section 51.01 of the Family
Code indicates that the broad aims and grant of power under article 5143d were to be
continued undiminished It was again emphasized that the purpose was to “provide for the
care, the protection, and the wholesome moral, mental, and h icsl development of
children” coming within the provisions of Title 3 of the Family ’ %!ZK Section 5LOl(l).
(Emphasis added. According to article 51.01(4), the state intends to give its wards “the
care that should be provided by parents” Under article 5143d, section 23(a) TYC is
enjoined to provide for the needs of a child ‘!as those needs would be met in an adequate
home.” Rather than limiting the authority of the state to act to provide care for
delinquent children, the drafters of the Family Code intended to give the state adequate
power to upgrade the quality of services provided Dawson, Commentary on Title 3, Texas
Family Code, 5 Tex. Tech L. Rev. 509 (1974). It was considered that the state would be
acting as a “parent”
TYC is authorized to consent to medical treatment of its wards when parents have
not responded to a request for consent. The conclusion that TYC has the power to consent
to medical care for its wards is thus supported by the historical practice and the statutory
scheme creating TYC. It would be anomalous to find that the legislature, having charged
TYC with the care of delinquent youths, failed to grant the agency the power to consent
to such care on behalf of its wards. The order of a juvenile court committing a child to
TYC should be construed as a judicial order, within the meaning of section 12.04 of the
Family Code, which grants to TYC, as the child’s guardian, a power to consent to medical
care which supersedes that of the parents
Turning to the second question, we find that its resolution is slightly more complex.
This is so because TYC’s power is limited. TYC’s guardianship powers under article 5143d
extend only so far as is necessary to accomplish the statutory purpose. While its authority
supersedes the power of the parent in many respects, some residuum of parental power
remains. For example, TYC may not require its wards to submit to religious training
because the First Amendment to the Constitution of the United States prohibits it.
Parents may do so. In the area of medical care, the state’s power to consent to medical
treatment and procedures extends only to those which are reasonably calculated to
. improve a child’s prospects for future health and rehabilitation, and thus for reintegration
mto society. We conclude that while TYC has the power to override some parental
objections, its decisions would be subject to attack by a parent or a guardian ad litem of
the child, on the ground that the decisions would not be in the child’s best interest In
such a situation the wishes of the child would be extremely important The resolution of
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this conflict would depend upon the nature of the medical procedlae proposed and the
relative weight of the various interests of the parent, child, and state which it involved
This balancing of competing interests by a court comports with the scheme envisioned by
section 35.01 of the Family Code. It is important to note, however, that section 35.01 does
not overn the situation being discussed When TYC has notice of a parental objectio=
shou d seek a judicial determination of its authority in a court having jurisdiction of the
2- .
Even in the face of parental objections, TYC has independent authority to compel
treatment of its warcb for infectious or contagious diseeses. Jacobson v. Massachusetts,
197 U.S. 11(1905); Abney v. Fox, 250 S.W. 210 (Tex. Civ. App - Austin 1923, writ ref’dl. It
is also true that a mmor may consent to the diagnosis and treatment of any infectious,
contagious, or communicable disease which is required by law or regulation to be reported
to a local health officer. Sec. 35.03 Texas Family Code. Such laws and regulations exist
in Texas. See V.T.C.S. art 4477, Rules l-33. In an emergency situation, and possibly in
other situations, actual consent of either parents or child is not necessary since consent
will normally be implied -See Mm 222 S.W. 225 (Tex. Comm’n App 19201,
jdgm t admted
In answer to your third question, the objections of a minor to medical treatment may
in the ordinary course of things be overridden by TYC. TYC always has the duty to act in
the child’s best interest, and a decision by TYC to require one of its wards to undergo any
particular medical treatment would be subject to attack on this ground, but we think that
requiring medical treatment is generally within TYC’s grant of authority under article
5143d We note, but do not address, the question of the extent of the constitutional right
articulated in Roe v. Wade, 410 U.S. 113 (1973). This right will affect TYC’s power to ,
compel medical treatment m certain cases.
SUMMARY
TYC has authority to consent to medical care for its wards in the
absence of parental consent When TYC has notice of a parental
objection to medical treatment the TYC should seek a judicial
determination of its authority. TYC may provide medical care to
its war& even though they may object.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
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Prepared by Steve Nagle
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath
Martha Allen
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpln
Steve Nagle
William G Reid
Bruce Youngblood
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