                                        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




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