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                                                 April   17, 1975


         The Honorable  Raymond W.              Vowel1              Opinion    No.      H-   585
         Commissioner,   Department             of
         Public Welfare                                             Re:     Effect of’18 year old
         John H. Reagan Building                                            bill,“article     5923b,
         Austin,  Texas 78701                                               V. T. C. S., on entitle-
                                                                            ment of students 18 to
                                                                            21 years of age to
                                                                            AFDC,        and related
         Dear   Commissioner          Vowell:                               matters.

               You    have asked us if the 1973 enactment       of the “18 year      old bill,”
         article     5923b. V. T. C. S., and the 1973 adoption       of section 11,01(l) of
         Title 2     of the Texas Family      Code, have~affected    in certain    respects     the
         state’s     federally  assisted   Aid to Families    of Dependent     Children    program
         (AFDC).        Your specific    questions  are:

                     1. Do..      . Senate Bills 123 and 168, Acts of the
                     63rd Legislature      (1973). preclude       the provision
                     of AFDC financial       assistance     and corresponding
                     Medicaid    benefits    to,persons,     previously    described
                     as children,    18 to 21 years      of age who are regularly
                     attending   school,    in accordance      with Article     695~.
                     $17, Vernon’s      Texas Civil Statutes?

                     2. Do..       . Senate Bill 123 and 168, Acts of the
                     63rd Legislature      (1973). preclude      the provision
                     of AFDC financial       assistance,    foster   care and
                     Medicaid     benefits to persons,     previously     described
                     as children,     18 to 21 years of age who are regularly
                     attending    school,   who are continuing      to receive
                     foster   care and for whose placement           and care the
                     Department      has reeponsibility     prior to their 18th
                     birthday    in accordance     with Article    695c, § 17-A,
                     Vernon’s     Texas Civil Statutes?




                                                    p. 2608
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The Honorable     Raymond     W.   Vowell,    page   2   (H-585)




    Article   5923b extends the rights,     privileges,    and obligations   of majority
to all persons    who are at least 18 years of age.       Section 11.01(l), Title 2,
Texas Family      Code defines  “child”   or “minor”as      a “person   under 18 years
of age who is not and has not been married           or who has not had his disabilities
of minority    removed   for general   purposes,    ” and defines “adult” as “any
other person. I’

     Federal    law provides  matching    funds for aid to families       with      dependent
children,    and defines “dependent    child” as

        . . . a needy child (1) who has been deprived               of parental
        support or care . . . and who is living with [a relative]
        . . . and (2) who is (A) under the age of eighteen,                or
        (B) under the age of twenty-one          and (as determined        by the
        State in accordance       with standards     prescribed     by the
        Secretary)     a student regularly     attending     a school,   college,
        or university,     or regularly    attending    a course of voca-
        tional or technical     tra’ining designed     to fit him for gainful
        employment;      . . .    42 U.S. C. A. $606(a).         (Emphasis
        added)

     A purpose  of the program,   demonstrated    in the requirements      for a State
plan, is to assure   to the maximum   extent possible    that the child will enter
the labor force and accept employment      so that he will become     self-sufficient.
See 42 U.S. C.A.      sec. 602(a)(14) and (19)A(i).  See also 42 U.S. C.A.   sec. 606(d)
The federal   deprivation   of “parental  support” requirement   was originally
based upon a m         duty of support in the parents.   King v. Smith, 392 U.S. 309
(1968); Carleson    v. Remillard,    406 U.S.  598 (1972).

     Congress    permitted  the optional extension    of federally    assisted  AFDC
benefits   to 18 to 20 years old students in 1965. See Townsend            v. Swank, 404
U.S.    282. 288-89 (1971) for a review    of the legislative    history   and the evolution
of the program.       Texas opted to extend benefits     to students in this age group
by Acts 1967, 60th Leg.,      ch. 348, p.822.     An indication     of the purpose for so
doing is found in the “emergency”       section of the Act which justifies       immediate
enactment     because

         . . . many children.     . . between   the ages of eighteen
         (18) and twenty-one   (21) are either in high school or
         attending  vocational  or technical  schools or institutions




                                        p.   2609
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          The Honorable      Raymond     W.   Vowell.    page   3    (H- 585)




                   of higher learning       and these children are currently
                   being deprived      of educational      opportunities  due to
                   the necessity     to assist in supporting       the family;
                   [and] . . . financial      participation    in the cost of
                   assistance    given on behalf of children under these
                   ages is available      from Federal       funds . . . .

               In 1969 the Texas statutes were amended,               tracking     the 1968 change in
          federal    law (42 USC sec. 608) to extend benefits to students in this age
          group placed in foster homes as a result of a judicial                  determination    of the
          child’s   best interests      and for whose placement         and care the Department
          of Public Welfare        is responsible.      Acts 1969, 61st Leg. , ch. 845, p. 2525.
          The current     Texas      statutory  provisions     are found in sections       17 and 17-A.
          article   695~. V. T. C.S.        Another   provision    in the 1969 amendatory        act
          clearly    demonstrated       the Legislature’s     intention to authorize       maximum
          participation    in these federal      programs      regardless      of the ages or circum-
          stances of the beneficiaries         who are otherwise        eligible    by federal  standards.
          As a result,     article    695~. section 4(12). V. 1. C. S., now reads in pertinent
          part:

                      (12) Notwithstanding      any other . , . law, the State
                   Department     of Public Welfare      is authorized   and em-
                   powered,    . . . in order that Federal       matching    money
                   will be available    for public welfare     programs     . . . to
                   extend the scope of the public welfare          programs    and the
                   services   provided.     . . so as to include . . . the entire
                   range of public welfare      assistance    and/or services
                   . . * as may be prescribed         or authorized    under Federal
                   laws and rules and regulations,         as they now are or as
                   they may hereafter      be amended.       Acts 1969, 61st Leg.,
                   ch. 845, p.2527.

               In 1973, the Texas      18 Year Old Bill      was enacted.       Art.   5923b.   V. T. C. S.
          It provides   in pertinent    part as follows:

                        Notwithstanding     any statutory     or decisional    law,
                    or any rule, regulation,        or ordinance    of this state
                    or of any political’eubdivision       or incorporated     city
                    or town of this state, a person         who is at least 18
                    years of age has all of the rights,        privileges,   -and




                                                   p. 2610
The Honorable       Raymond   W.   Vowell,      page 4      (H-585)




        obligations     of a person who is 21 years of age.      A law,
        rule,    regulation,   or ordinance    which extends a right,
        privilege,     or obligation   to a person on the basis of
        a minimum        age of 21, 20, or 19 years shall be inter-
        preted as prescribing        a minimum    age of 18 years.
        (Emphasis       added)

    Attorney   General    Opinion H-82 (1973) construed       the 18 Year Old Bill
as it related to a provision      of the Probate    Code specifying   a different age
for certain  rights,   privileges    and obligations.    There we said:

             . . . Senate Bill 123 does not operate            to amend [other
        statutes]  but rather is a general       law creating        an additional
        class of people (18, 19, and 20 year olds) who, without
        regard to marriage       or judicial   removal       of disabilities,
        are entitled   to the same rights,       privileges,       and obligations
        previously    reserved    to those of another class (persons             21
        years of age and over),        except as specifically         provided
        otherwise    in Senate Bill 123. Henceforth,             [the provision]
        of the Probate     Code . . . and Senate Bill 123 must be read
        together   and applied generally      in all instances        which con-
        dition limitations     or privileges    on the minority        or majority
        status of an individual.

        .   .   .


            Senate   Bill 123 effects        the removal   of disabilities    of
        minority   of those 18 years         of age or older.

    In Attorney   General    Opinion H-85 (1973) we found it necessary        to advise
that death benefits    could not, after the effective     date of Senate Bill 123. be paid
under article   6228f, V. T. C. S., to a person as the surviving        child of a deceased
law enforcement     officer  or fireman    if the person were 18 years of age of older.
The statute defined “minor       child” as meaning a child vho had not reached          the
age of 21 years and provided       that benefits  to a child would cease when the child
ceased to be a minor.       We said:

              In our opinion there     is no escape from        the conclusion
         that the statute confers      rights and benefits       dependent upon
         legal infancy.    . .




                                         p. 2611
. .




      The Honorable            Raymond        W.   Vowell,      page    5      (H-585)




                      The definition   must . . . be viewed in that
                  context  . . .  [W]e  must construe   ‘has not reached
                  the age of 21 years’ to mean ‘has not been’emanci-
                  pated from the disabilities   of minority.  . . . ’

      And      see,     Cook   v.   Employees          Retirement      System      of Texas.514        S. W. 2d 329
      (Tex.     Civ. App.      --Texarkana         1974, writ       ief!d.,,    n. r. e.)

          However,   not every   statutory reference   to “child” or “children”    previously
      meant “a person under the age of 21” or now means “a person            under the age
      of 18. ” For instance,   in Texas Probate    Code, section 6?(c),    the term “children”
      is defined         to include      “descendants        of whatever        degree      they may     be” without
      reference          to age.

              Similarly,       section     11.01(l),    Texas    Family        Code,     now provides:

                            As used in this subtitle and Subtitle C of this
                      title, unless the context requires   a different defini-
                      tion:

                           (1) ‘Child’ or ‘minor’ means a person under 18
                      years of age who is not and has not been married      or
                      who has not had his disabilities    of minority removed
                      for general purposes.      ‘Adult’ means any other
                      person.

      Although    this definition    may have an application       beyond the Family        Code, it
      does not necessarily       affect the particular    definition     of “dependent     child”
      in section 17, article      695~. V. T. C. S. In Ex parte Roloff,           510 S. W. 2d 913
       (Tex.   1974). the Supreme       Court held that “children”         as used in section     8a.
      article   695~. V. T. C.S.,      concerning   child-care     institutions,    refers    to children
      under 16 years of age, and was unaffected            in that regard by the enactment            of the
      18 Year Old Bill or the new Family          Code.

            In view of the Supreme    Court’s   interpretation    of section 8(a) of article
       695c, and the purposes    expressed     by the enacting legislation,       we are of the
       opinion that in enacting  sections    17 and 17-A of that article,      the Legislature
       did not intend “to confer   rights and benefits      dependent upon legal infancy, ”
       but instead intended (for other valid social reasons)         to specify   that certain
       persons    under 21 years of age would also qualify for the Texas AFDC program




                                                           p. 2612
The Honorable     Raymond     W.   Vowell,       page   6   (H-585)




without       regard to their     legal infancy or adult status if they were
eligible  by federal   standards.      See Washington     State Welfare    Rights
Organization     v. State,  511 P. 2d-0      (Wash.    1973); North Carolina      Attorney
General    Opinion (Oct. 28, 1971). reported        in CCH Poverty      Law Reporter,
Sec. 1205, 65 (1972).

     You have been formally         advised by the federal      Department      of Health,
Education    and Welfare,      we understand,       that the new Texas statutes will not
affect  the availability     of federal   aid because they have “no effect on45 CFR
233.30 which ie a definition         of ‘child’ for the purpose of the AFDC coverage.          ”
Federal   eligibility    standards    do control,    and states participating      in optional
programs     are not permitted       to deviate from them.       King v. Smith,       supra;
Townsend     v, Swank, m;            Carleson     v. Remillard,   sz.        If the persons
about whom you ask are eligible            under federal    law, then they mua t be con-
sidered   eligible    under state law in order for the state to continue participating
in the optional program.

     In view of the foregoing       we answer both of your questions     in the negative.
Neither    article    5923b. V. T. C. S., nor Family    Code section 11.01(l) preclude
the provision      of AFDC benefits     to persons in the categories   you describe
if they remain eligible        for such benefits under federal   standards.    In view
of the HEW posture,         we need not independently    examine the “duty of support”
and “judicial      determination”    questions.

                               SUMMARY

             Article 5923b, V. T. C.S.,      and eection ll. 01(l),
         Texas Family     Code,   do not preclude   the provision   of
         AFDC benefits     to persons  over the age of 18 years
         but under the age of 21 years if they remain eligible
         for such benefits    under federal   standards.

                                             A   Very   truly   yours,




                                    u            Attorney    General     of Texas




                                        p. 2613
The Honorable   Raymond    W.     Vowell,      page   7   (H-585)




APPROVED:




                                     +
DAVID   M. KENDALL,       First    Assistant




C. ROBERT   HEATH,        Chairman
Opinion Committee




                                            p. 2614
