D--- H---, Matter of, 5807

• Decision Date: 29 September 1977
• Docket Number: No. 5807,5807
• Citation: 556 S.W.2d 628
• Parties: In the Matter of D H , a child.
• Court: Texas Court of Appeals

Page 628

556 S.W.2d 628

In the Matter of D H , a child.

No. 5807.

Court of Civil Appeals of Texas, Waco.

Sept. 29, 1977.

Rehearing Denied Oct. 27, 1977.

John L. Hill, Atty. Gen., David M. Kendall, Jr., First Asst. Atty. Gen., David H. Young, Asst. Atty. Gen., Austin, for appellant.

John E. Hawtrey (Attorney Ad Litem), Seymour & Hawtrey, Bryan, Sarah L. D. Ryan, Bryan, Child Services Atty., for appellee.

OPINION

McDONALD, Chief Justice.

This is an appeal by the Texas Department of Human Resources (formerly Texas Department of Public Welfare) from that portion of a judgment requiring it to pay the balance of the Devereaux Foundation's monthly charge over ($180.) for the care and keeping of D H , a juvenile.

The Juvenile Court attorney of Brazos County on behalf of the State of Texas filed petition alleging D______ H______, a child 14 years of age, whose managing conservator was the Texas Department of Public Welfare, to be in need of supervision. The trial court found the child to have engaged in conduct indicating a need for supervision, and on June 28, 1977 rendered disposition order placing the child in the custody of the Devereaux Foundation at Victoria, Texas and placing her on probation for one year, subject to extensions until the child is 18 years of age.

The trial court ordered Brazos County to pay $180. per month to the Devereaux Foundation, and further ordered the Texas Department of Public Welfare to pay the "monthly charges remaining after the $180. per month has been paid" (which amounts to $1020. per month).

The Texas Department of Human Resources (formerly the Texas Department of Public Welfare) appeals from that portion of the judgment requiring it to pay for support of the child in the Devereaux Foundation, asserting the trial court erred in ordering such support, because it cannot constitutionally or statutorily comply with such judgment.

The Department asserts: 1) Money cannot be expended from the State Treasury without both a specific appropriation and a pre-existing law authorizing the expenditure; and 2) There is neither a specific appropriation, a pre-existing law, nor the statutory ability to authorize expenditure of money to place the child in the Devereaux Foundation.

The Texas Constitution provides in Article 8, Section 6 "No money shall be drawn from the Treasury but in pursuance of specific appropriation made by law"; and further Article 3, Section 44 provides: "The Legislature * * * shall not * * * grant, by...