                 April 2, 1953

Hon. John H. Winters
Executive Director
State Department of Public Welfare
Austin, Texas            Opinion No. S-23
                        Re: Legality of contracting to
                            pay, from Federal funds al-
                            located for this purpos,e,
                            actual travel expenses of
                            individuals retained to es-
                            cort runaway children being
                            returned to their home com-
Dear Sir:                   munities in other states.
          Y0.uhave requested an opinion of this office
concerning the legality of contracting to pay, from
Federal funds allocated for this p'urpose,actual travel
expenses of an independent contractor retained to escort
runaway children being returned to their own communit??
in other states. In this connection you submit the "
following facts:
          "Occasionally, it may appear to be to
     the best interest of the child and more
     practical for the Department for a repre-
     sentative of a private agency or an indivi-
     dual who has been looking after the child
     d,uringthe investigation to make the trip
     rather than having a representative of the
     Welfare Department accompany the child to
     its home. 0 D It wo,uldbe more practical
     for the Department to contract with an indi-
     vidual or an agency in advance, the contract
     stipulating that the individual or agency
     will ret,urnthe child to the appropriate
     authorities in the other state for a stipu-
     lated amount. The department wo,uldnot
     exercise any jurisdiction or control over
     such independent contractor as to the mode
     of trave!lor the,time of depart,ure."
          Under yo'urstatement of employment where the
person employed by the Department to ret.urna r'unaway
child from Texas to his own community in another state,
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Hon. John H. Winters, page 2 (S-23)


the contractor using his own means and methods to ac-
complish the purpose without being controlled'by the
Department of Public Welfare and being responsible only
for the result of the employment, such person wo,uldbe
an independent contractor. Smith Bras, Inc. v. O'Bryan,
94 S.W.2d 145 (Com.App. 193qj Shannon v. Western In-
~~~;?%~~~~~~~~'~k~~~~~v~~~~~~~~e~~~              Er'"
      . .          0   .   .      .
          In 1935 the Congress of the United States en-
acted the Social Security Act (42 U.S.C.A., Social Secu-
rity, sec. 721, p* 577) and made an appropriation for
"Child Welfare Services," and deposited part of s,uch
fund in the Treasury of Texas in "Child Welfare Service
Fund." One of the purposes for the,,usethereofbeing:
          II     for paying the cost of return?
     ing any &naway child who has not attained
     the age of sixteen to his own community in
     another state, in cases in which such return
     is in the interest of the child and the cost
     thereof cannot otherwise be met." (Title
     42, sec. 721, supra)
          It is provided in the Social Security Act, supra,
that in administering the funds provided for child welfare
the Board of Public Welfare should avail itself of voluntary
agencies in returning a child in Texas to its own community
in another state. In the general scope of the act it is
not obligatory upon the Board to use an employee of the
Board in such service, and it may employ an independent
contractor for such purpose. If an independent contractor
is so employed, there being no limitation in the federal
act, supra, the department is not bound by the general
appropriation bill as to mileage and per diem.
          The eneral appropriation bill;,52nd Legisla-
ture, Chapter & 99, Acts 52nd Legislature, 1951, pQ 1228,
at page 1412, full paragraph at top of page provides:
          "Providing that in addition to the ap-
     propriation out of state funds for assistance
     payments and administrative expenses for the
     biennum, the State Department of Public We,l-
     fare is authorized to accept from the Federal
     government any funds that may be a,llocatedby
     said government to the State Department of
     Public Welfare for assistance and administra-
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         Hon. John H. Winters, page 3 (S-23)


              tion; and said department ,canuse such
              Federal funds allocated for assistance pay-
              ments and administrative expenses in addi-
              tion to funds appropriated for those p'ur-
              poses out of State funds."
                   We believe that the above quoted provision of
         the general appropriation act is an appropriation of
         funds allocated by the Federal government for child wel-
         fare services, and comprehends the fund.appropriated by
         the,act of Congress, U.S.C,A,, Title 42, Sec. 721, p0
         577, supra.
                    No particular form of words is required to
         render an appropriation specific within the meaning of
         the Constitution. National Bis,cuitCompany v. State,
         134 Tex. 293, 135 S.W.2d 68    1940); Pickle v. Finley,
         91 Tex. 484,  44 S.W. 480 (l&h).

                   Therefore, the funds granted by the Federal
         government for child welfare services and placed in the
         Treasury of Texas may be expended for the return of a
         runaway child in Texas to his own community in another
         State, together with an attendant when necessary, out
         of such appropriation.
                                SUMMARY
                   Funds granted by the Federal govern-
              ment and placed in the State Treasury in
              Child Welfare Service Fund may be expended
              for the return of a runaway child in Texas
              to his own community in another state to-
              gether with an attendant when necessary.
              ,Ifan independent contractor is employed
              by the departmentfor this purpose for a
              stipulated amo.unt,the independent con-
              tractor being responsible to the department
              only for the result of such undertaking,
              the expenditure would not be subject to the
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Hon. John H. Winters, page 4 (S-23)


     limitation contained in the riders of the
     current general appropriation act.
                                  Yours very truly,
APPROVED:                         JOHN BEN SHEPPERD
                                  Attorney General
J. C. ,Davis, Jr.
County Affairs Division
C. K. Richards                    Bya
Reviewer                            B. Duncan Davis
                                               Assistant
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General
BDD:am
