                            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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                                                                 -,.


     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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