The opinion
The Attorney General of Texas
December 22, 1982
MARK WHITE
Attorney General
Honorable Julio A. Garcia Opinion No. MI'-533
Supreme Court Building
District Attorney
P. 0. BOX 12546
Austin, TX. 76711- 2546
Webb and Zapata Counties Re: Whether Webb County must
51214752501 P. 0. Box 1343 fund the Laredo-Webb County
T&Y 9101674-1367 Laredo, Texas 78040 Child Welfare Unit
Telecopier 5121475-0266
Dear Mr. Garcia:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709 You have asked whether Webb County must provide funding for the
2141742.6944 Laredo-Webb County Child Welfare Board. The Webb County Commissioners
Court appointed a child welfare board in accordance with article 695a,
section 4, V.T.C.S. (now Human Resources Code section 41.0021, in
4624 Alberta Ave., Suite 160
El Paso, TX. 799052793
1943. Since that time, Webb County has contracted with the Department
9151533-3464 of Human Resources [hereinafter DHR] to enable DHR to administer a
county-wide federal, state, and county-financed program of child
protection. See Human Resources Code )22.002(f). In the contract
1220 Dallas Ave.,Suite 202 signed March r 1980, the county agreed to provide funds for which it
Houston, TX. 77002-6966
7131650.0666
would be partially reimbursed by the federal government. The contract
permits either party to cancel the contract by giving sixty days
notice in writing to the other party.
606 Broadway, Suite 312
LubbocK, TX. 79401.3479
The federal programs for which the county has heretofore
8061747-5236
contractually contributed funds are 42 U.S.C. section 601 et seq. (aid
to needy families with children) and 42 U.S.C.A. section 1396 et. seq.
4309 N. Tenth. Suite El (medical assistance on behalf of families with dependent children).
McAllen, TX. 78501.1685 Each of the federal programs requires that the state plan for aid must
5121662.4547
be in effect in all political subdivisions of the state. In addition,
each program provides an option: the political subdivisions may
200 Main Plaza, Suite 400 administer the plan z the state may establish or designate a single
San Antonio, TX. 78205-2797 state agency to administer the plan. The Texas legislature chose to
512/225-4191 create a state agency to administer these programs, among others.
Thus, the DHR is the single agency in the state which can administer
An Equal Opportunity/
these federal programs. Human Resources Code 122.002(a). The
Affirmative Action Employer legislature restated the law that counties are primarily responsible
for the cars of the indigent, see, e.g., Human Resources Code sections
11.003 and 41.002(b), but gave each county the authority to create a
child welfare board which could contract with DHR to jointly provide
the services cited above. Human Resources Code 541.003. A county
contracting with the DHR receives benefits in the form of
reimbursement from the federal government available through 42
U.S.C.A. section 601 et seq. and 42 U.S.C.A. section 1396 et seq. The
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Honorable Julio A. Garcia - Page 2 (Mw-533)
only way a county may receive federal reimbursement for services to
needy children is to participate in the federal programs administered
through DHR as required by the Texas legislature.
Webb County wishes to cancel the contract with DHR and argues
that although the county has a duty to provide for its needy children,
it has no duty to create and fund a child welfare board or to contract
with the DHR.
Sections 41.002 and 41.003 of the Human Resources Code, at issue
here, are reproduced below:
(a) The commissioners court of a county may
appoint a child welfare board for the county. The
commissioners court and the department shall
determine the size of the board and the
qualifications of its members. However, the board
must have at least 7 and not more than 15 members,
and the members must be residents of the county.
The members shall serve at the pleasure of the
commissioners court and may be removed by the
court for just causs. The members serve without
compensation.
(b) [two or more counties may establish a
joint child welfare board];
(c) [members of child welfare board shall
select a presiding officer and perform required
duties];
(d) A county child welfare board is an entity
of the department for purposes of providing
coordinated state and 1OCd public welfare
services for children and their families and the
coordinated use of federal, state, and local funds
for these services. The child welfare board shall
work with the commissioners court.
Section 41.003 of the Human Resources Code provides:
The commissioners court of a county x
appropriate funds from its general fund or any
other fund for the administration of its county
child welfare board. The court s provide for
services to and support of children in need of
protection or care. (Emphasis added).
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Honorable Julio A. Garcia - Page 3 (~~-533)
It is clear from article 2351, section 11. that each county in
the state has the duty to provide for the support of its needy
residents. See Attorney General Opinions MW-33 (1979); H-1212 (1978);
H-902, H-8927976). In addition, since 1931, each county has had the
authority to create a child welfare board, originally pursuant to
article 695a, section 4, V.T.C.S., now codified as Human Resources
Code section 41.002(a), reproduced above.
Although sections 41.002 and 41.003 of the Human Resources Code
provide a method for administering county, state, and federal funds
through the establishment of child welfare boards, it is our opinion
that the statutes are permissive. Section 41.002 states that a
commissioners court ux appoint a child welfare board for the
county." (Emphasis added). Section 41.003 provides that the
commissioners court "may appropriate funds... for the administration
of its county child welfare board," and umay provide for services to
and in support of children in need of protection or care." The word
"may" is generally considered to be permissive. Womack v. Berry, 291
S.W.Zd 677, 683 (Tex. 1956). The Code Construction Act, article
5429b-2, section 2.01 provides that words shall be read according to
the rules of grammar and common usage.
Although the department, in cooperation with the commissioners
court, determines the size of the board and the qualifications of its
members, the board members are appointed by and serve at the pleasure
of the commissioners court. Human Resources Code 841.002(a).
Therefore, the board is entirely a creation of the commissioners
court. Once appointed by the commissioners court, the board becomes
an entity of DHR for the administration of federal, state and local
funds. However, DHR can neither appoint nor terminate board members;
that is the exclusive realm of the commissioners court. It is our
opinion that sections 41.002 and 41.003 of the Human Resources Code
create an optional method of state, federal, and county cooperation by
which DHR may assist a county in providing child welfare services.
Webb County is not obligated to provide funding for the Laredo-Webb
County Child Welfare Board.
SUMMARY
A county must provide for the support of needy
children, and has the authority to appoint a child
welfare board to accomplish that mandate.
However, pursuant to section 41.003 of the Human
Resources Code, the county is not obligated to
provide funding for the child welfare board. A
county need not cooperate with the Department of
Human Resources in order to fulfill its obligation
to support needy children. However, if it chooses
not to participate in programs administered by
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.
Honorable Julio A. Garcia - Page 4 (W-533)
DHR, it will lose reimbursement from the federal
government.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Patricia Hinojosa
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Jim Moellinger
p.1929