               THEATITORNEY               GENERAL

                              OFTEXAS




                              December 16, 1959



Honorable James A. Turman                Opinion No. WW-761
Executive Director
Texas Youth Council                      Re: Authority of the Comp-
Austin, Texas                                troller to issue warrants
                                             covering the cost of
                                             foster home care for
                                             children in the custody
Dear Dr. Turman:                             of the Texas Youth Council.
        You have requested the opinion of this office on the fol-
lowing questions:
        "1. Can the Comptroller issue warrants covering
    the cost of foster home care for children in the
    custody of the Texas Youth Council, and presently
    residing in Institutions under its jurisdiction, in
    accordance with existing statutory authority (Article
    5143d) at the rates specified in House Bill 4, Article
    II, Section 40, Acts of the 56th Legislature?
        "2. In the creation of the Texas Youth Council
    and the delegation of the administrative responslbil-
    ities thereto, was it the legislative intent that
    children in the Waco State Home be provided less, in
    terms of foster care provisions, than the other five
    institutions under this agency?
       "3. If the answer to the above is in the affirma-
   tive, can the Comptroller approve warrants covering
   the cost of foster home care for children being cared
   for presently in the Waco State Home?
       '%. If your answer to the above is in the afflrma-
   tive, can the Comptroller approve warrants covering
   the cost of foster home care for children presently
   residing in foster homes at the rates specified in
   House Bill 4, Article II, Section 40, Acts of the 56th
   Legislature?"
Honorable James A. Thurman,page 2 (~~-761)

        As you have explained in your opinion request, Article
5143,  VernonXs Civil Statutes, enacted by the 55th Legislature
in 1957, created the Texas Youth Council as successor to the State
Yout,hDevelopment Council and also placed under its jurisdiction
the Corsicana State Home, the Waco State Home, and the Texas Blind,
Deaf and Orphan School. Article 5143d, Sections 1,4(f), 8. Sec-
tion 8 provides:
        "The Texas Youth Council shall succeed to and
    be vested with all ri.ghts,powers, duties, facilities,
    personnel, records and appropriations, relating to
    the care, custody, and control of children, now held
    by (a) the State Youth Development Council, including
    the Gatesville State School for Boys, the Gainesville
    State School for Girls, and the Crockett State School
    for Negro Girls; (b) the Board for Texas State Hospi-
    tals and Spec,iaLSchools in respect to the Corsicana
    Sta,teHome and Texas Blind, Deaf and Orphan Home; and
    (c) the Department of Public Welfare with respect to
    the Waco State Home."
        Section 25 of Article 514311reads in part as follows:
        "(a) Por the parpose of,carrying out its duties,
    the You,thCouncil is authorized to make use of law
    enforcement, detention, supervisory, medical.,educa-
    tional, correctional, segregative, and other facilities,
    institutions and agencies within the state. When funds
    are available for the purpose, the Youth Council may
    enter into agreements with the appropriate private or
    public'official for separate care and special treatment
    in existing institutions of persons subject to the
    control of the Youth Council."
        We think this section is broad enough to encompass foster
homes, inc:LudSngchildren's boarding homes, as those terms are used
in child welfare work.
        The currerat<generalAppropriation Act (Chapter 23, Article.
 :, Sectlon 40, Acts o.fthe 56th Legislature, Third Called Session,
 Fjg,*at page 504) contains the following provision:
       "Sec. 40. Foster Home Care. Pursuant to existing
   statutory authority, t.heCouncil may place children
   committed to its custody in approved foster homes and
   from the appropria'tionsmade in this Act for 'operating
   expenses' of the respective institutions under its juris-
   diction may reimburse such approved foster homes at a
   reasonable rate not to exceed $1.50 per child per day;
   prowl,ded,however, that none ofthe moneys appropriated
   in this Act may be pald to any employee of the Texas
Honorable James A. Turman, page 3 (W-761)

    Youth Council for such foster home care, nor may
    any of the moneys appropriated In this Act be ex-
    pended to any foster home in which any employee of
    said Youth Council has a financial interest. Any
    children placed in foster homes shall be deemed to
    have the same status of other children in the homes
    or institutions under the Youth Council, and shall
    continue to be wards and subject to the guardianship
    of the superintendent of such respective homes or
    institutions."
        There are two requirements that are needed for the Comp-
troller to have authority to issue warrants. The Legislature must
provide general statutory authority to accomplish a certain purpose
and it must provide funds to pay for that purpose. Section 25 of
Article 5143d provides the authority for the Youth Council to place
children in its custody in foster homes and the above-quoted section
in the General Appropriation Act provides the funds to accomplish
this purpose. Therefore, the Legislature has given the Comptroller
the authority to issue warrants covering the cost of foster home
care for children in the custody of the Council.
        Section 25 of Article 5143d does not set a limit on the rate
of pay for foster home care, but the Appropriation Act provides that
the rate shall not exceed $1.50 per child per day. An appropriation
bill may contain provisions which detail, limit, or restrict the use
of the funds, if the provisions are necessarily connected with and
incidental to the appropriation and do not conflict with general
legislation. Att'y Gen. Op. V-1254 (1951). The provision authorizing
payment not to exceed $1.50 per child per day clearly is a valid pro-
vision with respect to foster care for children in all the institu-
tions under the jurisdiction of the Council other than the Waco State
Home. We shallconsider whether it is valid with respect to the Waco
State Home in answering your second question, which we restate:

        "In the creation of the Texas Youth Council and
    the delegation of the administrative responsibilities
    thereto, was it the legislative intent that children
    in the Waco State Home be provided less, in terms of
    foster care provisions, than the other five institu-
    tions under this agency?"
        Article 3259 of the Revised Civil Statutes, last amended in
1941, provides in essence that children committed to the Waco State
Home may be placed in children's boarding homes at a reasonable rate
not to exceed $1.00 per child per day, and also contains other con-
ditions and restrictions on placement. If this general law provision
has not been repealed or superseded by subsequent general legislation,
the appropriation rider Is invalid insofar as it attempts to raise
the limit to $1.50 for care In boarding homes used by the Waco State
Home.
                                                                     --   .




Honorable James A. Turman, page 4 (W-761)

        It is our opinion that Section 25 of Article 5143d has
superseded Article 3259 and that the $1.00 limit Is therefore no
longer in effect. Consequently, the $1.50 limitation in the Appro-
priation Act is fully applicable to the Waco State Home as well as
to the other five institutions under the Youth Council.
        Section 39 of Article 5143d expressly repeals conflicting
laws to the extent of conflict. Even without an express provision
for repeal, where a new statute embraces the subject of a former
one and creates a new and independent system relative to the subject
matter oftthe two statutes, it is construed as an implied repeal of
the former statute, although there is nothing in the provisions of
the two statutes which might not stand together if all of their terms
were inserted in one act. Bryan v. Sundberg, 5 Tex.418 (1849); Dallas
Consol. Electric St. Ry. Co. v. Stagtei;02 Tex. 570 120 S.W. 9r
(1909) Motor Inv. Co. v. City of H        142 Tex. 486 179 S W.2d
278 (1444) 39 Tex.Jur., Statutes E)tiO.'Section25 of'Article 5143d
is authoriiy for foster home care'for all institutions under the
Council. It fixes no rate limit and leaves the Legislature free to
do so each time it appropriates money for foster care. We think
this scheme was intended to apply to all types of foster home care
at all the institutions, including the Waco State Home. We answer
your second question in the negative.
        This answer to your second question makes a further answer
to the other two questions unnecessary.
                                SUMMARY
        The Comptroller may issue warrants covering the cost
    of foster home care for children in the custody of the
    Texas Youth Council. It was the legislative intent, in
    the enactment of Section 25 of Article 5143d, Vernon's
    Civil Statutes, that the Waco State Home be on the same
    terms as other institutions under the Council in regard
    to foster home care provisions.
                                     Yours very truly,
MKW:bh                               WILL WILSON
                                     Attorney General of Texas
APPROVED:
OPINION COMMITTEE
W.V. Geppert, Chairman               BY
Marvin H. Brown, Jr.
Cecil C. Csumnack,Jr.
James P. Ryan
REVIEWED FOR THE ATTORNEY GENERAL
BY:
         Leonard Passmore
