            THE      ATTOIRXEY        GENERAL
                         OF' TEXAS

                        December 2, 1986                    1




Mr. 0. L. McCotte?                   opinion No. m-580
Director
Texas Department of COrrSCtiOnS      Re: Authority of the Texas Depart-
P. 0. Box 99                         ment of Corrections to assume
Huntsville, Texas   77340            medical costs with regard to the
                                     hospitalization of a .premature
                                     infant born to an inmate

Dear Mr. McCotter:

     You ask whether the Txas Department of Corrections (hereinafter
the department) is responsjble for the medical expenses of a premature
infant born to a prison inuate. You provide the following background:

             As a part of the medical services provided
          inmates incarce.rated at the Gatesville and
          Mountain View Units, TDC contracts with several
          free world hospitals to provide delivery services
          to pregnant inmates. Generally, pregnant inmates
          are transported to a contract hospital for de-
          livery, and following such delivery, the newborn
          is placed with rs:tativesof the inmate or, if no
          relatives are i.vailable, placed in a foster
          environment. Arrangements for placement of the
          newborn are made with the coordinated efforts of
          TDC and the Departnent of Human Services. . . .

             Recently, an infant was born to an inmate some
          three months premature. Because of the premature
          birth, extensive h,Dspitalizationhas been required
          and it is expected that another 2-3 months inten-
          sive care hospitalization will also be required.

You assert that the department lacks legal authority to pay for the
medical costs which exceed the expenses of the inmate mother in
"normal deliveries." You suggest that the mother is responsible for
all such medical costs.

     Our response to your raquest assumes that you do not question the
department's constitutional ;andstatutory duty to provide inmates with
necessary medical care. Ste U.S. Const. Amends. 8, 14 (due process
clause); V.T.C.S. art. 61gGf. The medical expenses of a mother who




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Mr. 0. L. McCotter - Page 2 (m-580)




delivers prematurely are no less "necessary" than the medical expenses
of a normal, full-term deliv'ery. Accordingly, this response addresses
only the liability of the drpartment for the medical expenses attri-
butable solely to the infant.

     No person or agency hclds the authority to make a contract which
is binding on the state, exc:eptwhen authorized to do so by the Texas
Constitution or statutes. Tex . Const . art. III. §§44. 49: State v.
Ragland Clinic-Hospital, 159 S.W.2d~l05, 106 (Tex. 1942); cf. State v.
City National Bank of Aust::n,578 S.W.2d 155 (Tex. Civ. App. - Tyler
1979), aff'd. 603 S.W.2d 76r(Tex. 1980). Article 6166~ provides that
the Texas Department of Corrections, together with its d&actor, shall
be responsible "for the proper care, treatment, feeding, clothing and
management of the prisoners confined therein." This statute applies,
by its terms, only to "prisoners." Article 61661 grar,tsthe department
the power to prescribe reamnable rules and regulations governing the
humane treatment of prisoners and the classification and separation of
prisoners according to sex. Article 61663 also prohibits discrimina-
tion against prisoners on the basis of sex. Like article 6166g,
however, article 61663 applies only to "prisoners." No other statutes
authorize the department to provide for the medical expenses of an
infant born to one of tht! department's prisoners. Other than the
oblique reference in artic'to 6166j to the separation and classifica-
tion of prisoners according to sex, the Texas Legisiature has made no
attempt to address the spem::ialproblems faced by pregnant inmates --
much less by their childre:l. Consequently, the department lacks the
authority to enter into a contract to pay the medical expanses of a
premature infant born to a prisoner.

     You suggest that the prisoner-mother is legally responsible for
the medical expenses of her premature infant. Section 12.04 of the
Texas Family Code provides, in part, that

          [elxcept as otherwise provided by judicial order
          or by an affidavit of relinquishment of parental
          rights . . . the esrent of a child has. . . .

             .   .   .   .

            (3) the duty to support the child, including
         providing the child with clothing, food, shelter,
         medical care, i1c.d dducation. . . .    (Emphasis
         added).

Thus, "parental" duties clearly include necessary medical care for a
premature infant. Addition.slly, section 4.02 of the code provides
that parents are liable to prrsons who provide necessaries to those to
whom support is owed.

     Section 11.01 of the Family Code states, in part:




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Mr. 0. L. McCotter - Page 3   (JM-580)




             (3) 'Parent' mans    the mother, a man as to
          whom the child is legitimate, or an adoptive
          mother or father, but does not include a parent as
          to whom the parent-child relationship has been
          terminated.

You do not mention the chi:td'sfather. Both parents have a statutory
duty under section 12.04 to support their minor children. Rarrington
v. State, 547 S.W.2d 616, 619 (Tex. Grim. App. 1977). If the child
is not legitimate as to ::ts father, the Family Code provides for
paternity suits and support proceedings. See §13.01 et ,seq. Bio-
logical fathers have a dum to support their"illenitimate' children.
Se; 513.01 et seq.; In Inierest df Miller, 605 S.<2d 332 (Tex. Civ.
GF. - Fort Worth 1980), ---
                         afT'd, In Interest of J.A.M., 631 S.W.2d 730
(Tex. 1982). See also Mil1.s;
                       --    vi Habluetzel, 456 U.S. 91 (1982); Gomez
v. Perez, 409 U.S. 535 (1973).

     "Parent" under the code, however, "does not include a parent as
to whom the parent-child relationship has been terminated." You
indicate that the children of inmates are usually placed with
relatives of the inmate or with foster homes through the Texas
Department of Human Services. You do not indicate whether proceedings
have been instituted to imminate, either voluntarily- or involun-
tarily, the inmate's parental rights.      See generally Family Code
§§15.041, 15.02 (Iuvoluntary Termination of Parental Rights); B.W.J.
v. State Department of Public Welfare, 543 S.W.2d 9 (Tex. Civ. App. -
Texarkana 1976, no writ);-In Interest of Guillory, 618 S.W.Zd 948
(Tex. Civ. App. - Houston ['lstDist.] 1981, no writ); cf. Elliott v.
Maddox, 510 S.W.2d 105 (Tex. Civ. App. - Fort Worth 1974, no writ)
(although imprisonment of a parent may be evidence of legal grounds
for termination of parental .cights,imprisonment alone is insufficient
to warrant termination of parental rights under section 15.02,
particularly when the eve'.~tsleading to the imprisonment occurred
prior to the child's bi::t:h). If proceedings are instituted to
terminate the mother's parental rights in the child, a simultaneous
demand by the state that t'hemother fulfill her financial parental
duties could trigger questions under the due process clause of the
Fourteenth Amendment to the 'UnitedStates Constitution.

     The duty of an inmate-mother to pay for the medical costs of her
premature infant may depend Dn her ability to pay. A parent's duty to
support his or her childrer.under section 12.04(3) of the Family Code
generally depends on his or her ability to contribute to the support
of the child. Valaque v. Valaque, 574 S.W.Zd 608, 609 (Tex. Civ. App.
- San Antonio 1978, no writ). Circumstances may exist which relieve a
parent of the general duty to support his or her children. 574 S.W.2d
at 610; see also In Interest of Guillory. 618 S.W.2d at 951. As
indicated, section 4.02 of The Family Code creates a direct cause of
action for parties who provide necessaries to the children to whom
parents owe support. Necessaries clearly include necessary medical
treatment. Although the legal liability of parents under section 4.02




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Mr. 0. L. M&otter   - Page 4   (JM-580)




to parties who provide necessary medical treatment to children is not
predicated upon the parents' ability to pay, it will, as a practical
matter, determine whether filing suit under section 4.02 is worth-
while. The party to institute suit under section 4.02 is the party
that actually provided mcessaries, not the Texas Department of
Corrections. If the parents of the child of an inmate are unable to
support their child, the #child could be deemed an indigent for
purposes of medical care. Lee generally V.T.C.S. art. 4438f (Indigent
Eealth Care and Treatment A;::).

                               SUMMARY

            The Texas Department of Corrections lacks the
         authority to ente'r into a contract to pay the
         medical costs of an infant born prematurely to an
         inmate when .such costs exceed the costs attri-
         butable to the inmate-mother.

            Both the prir.oner-mother and the father of
         the child, whethe,clegitimate or illegitimate, are
         legally liable under section 4.02 of the Texas
         Family Code to parties who actually provide
         necessary medical treatment to children to whom
         the mother and f;ltherowe support. Depending on
         -their financial ability, they may also be liabie
         under section 12.'14(3)of the Family Code.




                                          dIgJ&tt%
                                            Attorney General of Texas

JACK RIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Jennifer Riggs
Assistant Attorney General




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