Untitled Texas Attorney General Opinion ( 1953 )

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,
_ ..’
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-
. .. _
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
_ . .
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