                      The Attorney                 General of Texas
                                        December     19,   1979

MARK WHITE
Attorney General


                   Honor&& Ron Jackson                            Opinion No. ~~-165
                   Texas Youth Coundl
                   8900 Shoal Creek Boulevard                     Rex Whether the Texas Youth
                   Austin, Texas 78766                            Council may provide medical set-
                                                                  vices to its war& without parental
                                                                  consent

                   Dear Mr. Jacksom

                        You have asked several questions concerning the authority     of the
                   Texas Youth Council (hereinafter TYC) to provide medical services to its
                   wards under three different but overlapping sets of circumstances:

                              (1)     When parents   have not responded to a request
                                      for consent;

                              (2)     When parents     have      expressly   refused   their
                                      consent;

                              (3)     When the patient has refused consent

                          Title 2 of the Texas Family Code deals with the parent-child
                   relationship, and Title 3 establishes procedures for dealing with delinquents,
                   Like Title 2, Title 3 contemplates the removal of children from their home
                   by the power of the state.       Compare Chapters 15 and 17 of Title 2, with
                   Chapters 51, 52, 53 and 54 of Title 3. Unlike Title 2, Title 3 does not
                   specifically indicate the manner in which the substantive rights of a parent
                   are altered by a proceeding in which the state takes cllstody of the child
                   Compare Chapters 12 and 14 of Title 2 with section 54.04 of Title 3. Yet the
                   parent-child   relationship is necessarily altered by any disposition under
                   section 54.04.

                        Section 12.04 states:

                                Except as otherwise provided by judicial order or
                              by  an affidavit of relinquishment of parental rights
                              executed under Section 15.03 of this code, the parent
                              of a child has the following rights, privileges, duties,
                              and powers




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Honorable Ron Jackson     -   Page Two    (MB-105)



              (1)   the right to have physical possession of the child and to
           establish its legal domicile;
              (2)   the duty of care, control, protection, moral and religious
           training, and reasonable discipline of the child;
              (3) the duty to support the child, including providing the child
           with clothing, food shelter, medical care, and education;
              (4)   the duty to manage the estate of the child, except when a
           guardian of the estate has been appointee
              (5)   the rieht to the services and earninus of the child;
              (6)   the p:wer to consent to marriage, to enlistment in the
           armed forces of the United States, and to medical, psychiatric, and
           surgical treatment;
              (7) the power to represent the child in legal action and to
           make other decisions of-substantial      legal signif&nce   concerning
           the child;
              (8)   the power to receive and give receipt for payments for the
           support of the child and to hold or disburse any funds for the
           benefit of the child;
              (9)    the right to inherit from and through the child; and
              (10) any other right, privilege, duty, or power existing between
           a parent and child by virtue of law.

(Emphasis added.   Under section 54.04(d) of the Family Code, a child may be placed

           (1)   . . . on probation on such reasonable and lawful terms as the
           court may determine for a period not to exceed one year, subject
           to extensions not to exceed one year each:

                        (A) in his own home or in the    custody of a relative   or
                        other fit person;
                        (B) in a suitable foster home;   or
                        (0    in a suitable public or     private institution    or
                        agency except the Texas Youth    Council; or

           (2)   if the court or jury found at the conclusion of the adjudica-
           tion hearing that the child eqpsged in delinquent conduct, the court
           may commit the child to the Texas Youth CounciL

A simple rearing of this section shows that, under any possible disposition, parental rights
as defined in section 12.04 are altered       Each possible disposition alters the rights in
different ways. Any disposition provides at the least that the court assumes the duty of
care, contrcd, protection, and reasonable discipline of the child. Placing the child with a
relative temporarily extinguishes the parent’s right to have physical possession of the
child. The placing of a child with TYC is obviously the disposition which most thoroughly
alters the rights, privileges, duties, and powers of a parent   However, no mention of the
different alterations of the parental powers and duties is made in the Texas Family Code.




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        Honorable Ron Jackson     -   Page Three         (MW-105)



             One reacing of the law would give TYC very broad powers as a result of a court’s
        commitment of a child to its care. Section 5102(3) of the Family Code defines guardian”
        as

                   the person who, under court order, is the guardian of the person of
                   the child or the public or private agency with whom the child has
                   been placed by a coup t

        This plainly makes TYC the guardian of a child committed to it under section 54.04 of the
        Family Code. Title 2 of the Family Code does not define “guardian” as a term of art but
        does define the term “managing conservator,” in section 14.02. In the context of the
        Probate Code, it has been squarely held that guardianship and managing conservatorship
        are the same. Guardianship of Henson, 551 S.W.2d 136 (Tex. Civ. App. -- Cotpus Christi
        1977, writ ref’d n.r.e.1. However, the definition of managing conservator in the Family
        Code seems specially designed to deal with the problems raised in a divorce. This reading
        would give TYC far more power over -its wards than we believe the legislature
        contemplated    We therefore rest our opinion on other grouncb.

               TYC originated with the Gatesville School for Boys in 1869. From that date until the
        present TYC and its predecessors have provided medical services of all sorts to the
        juveniles committed to its care with only the most general authorization.    For instance,
        Acts 1913, 33rd Leg., lst C.S., ch. 6, SS 12,13, at 7, provided:

                   The superintendent shall divide the inmates into such classes and
                   shall house, feed and train them in such manner as he deems best
                   for the development and advancement of the child. All inmates
                   shall be provided with shelter, wholesome food and suitable
                   clothing, books, means of healthful recreation and other material
                   necessary for their training, at the expense of the state, except as
                   otherwise provided by law.

        This statute was the sole authority for education, housing, medical care and other
        treatment of juveniles from its enactment until 1949. It is still on the books as V.T.C.S.
        article 5129. That medical care was authorized by this very general language, and that the
        legislature in fact was aware that such medical care was provided, is demonstrated by the
        reference to a “resident nurse” in Acts 1913, 1st C.S., 33rd Leg., ch. 6, S 15, at 7. The
        section was amended slightly and the words “school physician” were substituted for
        “resident nurse” in 1945. Acts 1945, 49th Leg., ch. 247, S 1, at 385.

              In 1949, the state legislature transferred the control of the State Training Schools,
        including the Gatesville School for boys, from the Board of Control to a newly created
        State Youth Development Council, V.T.C.S. art 5143c, and in 1957, to TYC. V.T.C.S. art.
        5143d. In each ease it was specifically provided that the new agency would succeed to all
        the powers and rights of its predecessor. Art. 5143q S 6; art 51434 S 5(c).

              The 1949 legislation concerning juveniles was an attempt by the legislature to
        organize and modernize the system of State Training Schools. The great bulk of article




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5143c, the major 1949 statute, is devoted to laying out a blueprint for the organization of
state administrative  and judicial procedures dealing with juveniles.   Several sections of
the law also address the authority of the newly created state agency to deal with its
war&.     It seems clear from the fact that the original section which granted similar
authority, article 5129, was not repealed that the provisions of article 5143~ were meant
merely to elucidate and not to limit the powers of the state agency.

      The new sections addressed the iszie in language somewhat more specific than the
old, but still very generaL For example, article 5143c, section 1 stated that the purpose of
the act was to develop

            in all children the spiritual,  mental, and physical resources
            necessary for complete citizenship responsibility and participa-
            tion . . .

Section 2 of the article provided    significantly    for the purposes of interpretation,

            This Act shall be liberally      construed     to accomplish    the purpose
            herein sought.

(Emphasis added.      It was also provided   in section 19 of article 5143~ that:

            As a means of correcting the socially harmful tendencies           of a child
            committed to it, the Council may:

              . ...

              (b) Require such modes of life and conduct as seem best adapted
           to fit him for return to full liberty without daqer to the public;
              (cl Provide such medical or psychiatric          treatment   as is
           necessary; . . .

Article 5143c, section 26(a) contains evidence that the legislature considered medical care
and treatment of its wards to be among the responsibilities of the agency. It provides
that:

           For the purpose of carrying out its duties, the Council is authorized
           to make use of law enforcement, detention, supervisory, medical,
           educational,    correctional,  segregative,    and other    facilities,
           institutions and agencies, within the State. . . .

In addition to these very broad guidelines, the agency           was given extensive rule-making
powers, article 5143+ section 22; and the power to order         a child’s confinement “under such
conditions as it believes best designed for his welfare          and the interests of the public,”
article 5143c, S 18. The 1957 legislation reorganized             the system again, but left the
substantive provisions quoted above virtually intact.




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         Honorable Ron Jackson      -   Page Five        (MW-105)



               Summarizing the historical grant of authority to TYC and its predecessors, we
         conclude that this authority was broad indeed. Prior to 1949 it plainly included the power
         to consent to medical care Nothing in the 1949 and 1957 enactments changed that. When
         an emergency situation required hospitalization of a TYC ward, the superintendent of the
         school signed the hospital’s consent form. For most matters, however, no consent form
         was required because most ordinary medical care was provided by the schools themselves.
         Every TYC institution has and has had for many years a staff physician, a staff dentist, a
         staff psychiatrist and a staff of several nurses.

                When the legislature enacted the Family Code, it did not repeal any section of
         article 5143d. On the contrary, the statement of purpose in section 51.01 of the Family
         Code indicates that the broad aims and grant of power under article 5143d were to be
         continued undiminished     It was again emphasized that the purpose was to “provide for the
         care, the protection, and the wholesome moral, mental, and h icsl development of
         children” coming within the provisions of Title 3 of the Family   ’ %!ZK     Section 5LOl(l).
         (Emphasis added.     According to article 51.01(4), the state intends to give its wards “the
         care that should be provided by parents”        Under article 5143d, section 23(a) TYC is
         enjoined to provide for the needs of a child ‘!as those needs would be met in an adequate
         home.” Rather than limiting the authority of the state to act to provide care for
         delinquent children, the drafters of the Family Code intended to give the state adequate
         power to upgrade the quality of services provided Dawson, Commentary on Title 3, Texas
         Family Code, 5 Tex. Tech L. Rev. 509 (1974). It was considered that the state would be
         acting as a “parent”

               TYC is authorized to consent to medical treatment of its wards when parents have
         not responded to a request for consent. The conclusion that TYC has the power to consent
         to medical care for its wards is thus supported by the historical practice and the statutory
         scheme creating TYC. It would be anomalous to find that the legislature, having charged
         TYC with the care of delinquent youths, failed to grant the agency the power to consent
         to such care on behalf of its wards. The order of a juvenile court committing a child to
         TYC should be construed as a judicial order, within the meaning of section 12.04 of the
         Family Code, which grants to TYC, as the child’s guardian, a power to consent to medical
         care which supersedes that of the parents

                Turning to the second question, we find that its resolution is slightly more complex.
          This is so because TYC’s power is limited. TYC’s guardianship powers under article 5143d
          extend only so far as is necessary to accomplish the statutory purpose. While its authority
          supersedes the power of the parent in many respects, some residuum of parental power
          remains. For example, TYC may not require its wards to submit to religious training
          because the First Amendment to the Constitution of the United States prohibits it.
          Parents may do so. In the area of medical care, the state’s power to consent to medical
          treatment    and procedures extends only to those which are reasonably calculated to
        . improve a child’s prospects for future health and rehabilitation, and thus for reintegration
          mto society.    We conclude that while TYC has the power to override some parental
          objections, its decisions would be subject to attack by a parent or a guardian ad litem of
          the child, on the ground that the decisions would not be in the child’s best interest        In
          such a situation the wishes of the child would be extremely important       The resolution of




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Honorable Ron Jackson     -   Page Six        (NW-105)



this conflict would depend upon the nature of the medical procedlae proposed and the
relative weight of the various interests of the parent, child, and state which it involved
This balancing of competing interests by a court comports with the scheme envisioned by
section 35.01 of the Family Code. It is important to note, however, that section 35.01 does
not overn the situation being discussed When TYC has notice of a parental objectio=
shou d seek a judicial determination of its authority in a court having jurisdiction of the
2- .

       Even in the face of parental objections, TYC has independent authority to compel
treatment of its warcb for infectious or contagious diseeses. Jacobson v. Massachusetts,
197 U.S. 11(1905); Abney v. Fox, 250 S.W. 210 (Tex. Civ. App - Austin 1923, writ ref’dl. It
is also true that a mmor may consent to the diagnosis and treatment of any infectious,
contagious, or communicable disease which is required by law or regulation to be reported
to a local health officer. Sec. 35.03 Texas Family Code. Such laws and regulations exist
in Texas. See V.T.C.S. art 4477, Rules l-33. In an emergency situation, and possibly in
other situations, actual consent of either parents or child is not necessary since consent
will normally be implied -See Mm                    222 S.W. 225 (Tex. Comm’n App 19201,
jdgm t admted

       In answer to your third question, the objections of a minor to medical treatment may
in the ordinary course of things be overridden by TYC. TYC always has the duty to act in
the child’s best interest, and a decision by TYC to require one of its wards to undergo any
particular medical treatment would be subject to attack on this ground, but we think that
requiring medical treatment is generally within TYC’s grant of authority under article
5143d We note, but do not address, the question of the extent of the constitutional right
articulated in Roe v. Wade, 410 U.S. 113 (1973). This right will affect TYC’s power to ,
compel medical treatment m certain cases.

                                       SUMMARY

           TYC has authority to consent to medical care for its wards in the
           absence of parental consent     When TYC has notice of a parental
           objection to medical treatment the TYC should seek a judicial
           determination of its authority.  TYC may provide medical care to
           its war& even though they may object.




                                                MARK     WHITE
                                                Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General




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        Honorable Ron Jackson    -   Page Seven        (MN-105)




        Prepared by Steve Nagle
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        C. Robert Heath
        Martha Allen
        David B. Brooks
        Bob Gammage
        Susan Garrison
        Rick Gilpln
        Steve Nagle
        William G Reid
        Bruce Youngblood




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