Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas December 29, 1978 JOHN L. HILL Attorney General Honorable John J. Kavanagh,M.D. opinion No. R-1318 Commissioner Texas Department of Mental Health Re: Whether the Department of and Mental Retardation Mental Health and Mental Retar- Box 12668, Capitol Station dation may acmtfederal funds Austin, Texas 767ll to purchase automobile insurance for foster grandparents who are not employees of the depart- ment. Dear Dr. Kavanagh: You have requested our opinion as to whether the Department of Mental Health and Mental Retardation may expend federal grant funds for the purchase of liability insurance for foster grandparents. The department receives federal funds as a sponsor of the Foster Grandparent Program administered by ACTION. As a prerequisite ~tothe receipt of those funds, the department is required to furnish various kinds of htsurance coverage to program volunteers, including automobile liability, personal liability, and accident insurance. The federal grant provides funds specifically for the sponsor’s use in purchashtg such insurance coverage. You indicate that program volunteers are not employees of the department. A rider to the 1977-79 General Appropriations Act authorizes the Department of Mental Health and Mental Retardation “to accept gifts, donations and Federal grants for the programs and projects intended to improve the care and treatment of patients or students” and appropriates such “gifts, donations end grants . . . for the purposes for which they are made available.” General Appropriations Act; Acts 1977, 65th L-a ., ch. 672, art. 11,S2d, at 2699. Another rider to the Act requires that “[afll agencies receiving federal funds shall utilize those funds to the maximum extent possible to reduce expenditures of state funds appropriated for use.” Article V, section 20,at 3155. Thus, an appropriation clearly exists by which the department could purchase liability insurance for its foster grandparent volunteers. g. 5184 Honorable John J. Kavanagh,M.D. - Page 2 (H-1318) Nevertheless. an annronriation. in order to be valid. must be sunnorted bv preexist’ law. Tex. Co&: ari. 3, g44. v 7iS.W.2d 242 (Tex. 1934 7 ; Attorney General Opinions H-R72 (1978); H-944 (1977); H-679 t197.5). Article 6252-l9a, V.T.C.S., authorixes various state egencies, including the Department of Mental Health and Mental Retardation, to purchase automobile liability insurance for the purpose of insuring “the& officers and employees.” Since volunteers in the Foster Grandparent Program are not employees of the department, article 6252-l9a is not applicable to them. In our opinion, however, the statute indicates a legislative belief that specific authorization is necessary to enable a state agency to purchase insurance. See Attorney Ganer.al Opinion H-742 (1975). Until there is statutory authorizationregarding nonemployees, we do not believe that the department may expend funds for the purchase of irrsurancefor these volunteers. SUMMARY The Department of Mental Health and Mental Retardation is not now authorized to expend, funds for the purchase of liability insurance for volunteers in the Foster Grandparent Program. APPROVBD: Opinion Committee p. 5185