Can a Texas judge order the county to pay for a child's court-ordered psychological evaluation when the parents can't afford it?

Texas AG Opinion JM-1045: Who Pays for a Child's Court-Ordered Psychological Evaluation?

Plain-English summary

When a couple divorces and there is a fight over the children, a Texas family court sometimes wants an outside expert to look at what the children need. The court can appoint a psychologist to test and counsel the children, and it can order a "social study" of the family. All of that costs money. The question in this opinion was who pays when the parents cannot: can the judge send the bill to the county?

A Dallas County official put the problem to the Attorney General. In several divorce cases, a family law district court had appointed the county's Child Welfare Unit as managing conservator of the children, appointed a psychologist to test and counsel them, and ordered that the psychologist be paid out of the Dallas County General Fund. The county auditor refused to pay. The court then held hearings, found the parents indigent, and again ordered the fees paid from the general fund.

The Attorney General concluded the judge acted within his authority. Section 11.12 of the Family Code lets a court order a social study in any case affecting the parent-child relationship, and a social study can include psychological evaluation. An earlier opinion, H-362 (1974), had already established that fees for social studies are assessable as court costs, which lines up with section 11.18(c) taxing the Department of Human Services' study fee as costs. The general rule is that costs cannot be charged to someone who is not a party to the suit, and the Texas Supreme Court applied that rule in County of Dallas v. Gibbs when it held Dallas County could not be ordered to pay ad litem fees. But the AG distinguished Gibbs: there was no indigency in that case. Here, the finding that the parents were indigent, together with the appointment of the county Child Welfare Unit as managing conservator, gave the county enough of an interest in the suit that its general fund could be tapped, much as section 11.10(e) already required the county to pay a court-appointed attorney for indigent children or parents in a termination case.

Two limits came out of the supplemental questions. First, the court must actually find the parents indigent before ordering the general fund to pay; if the parties can afford the costs, they pay them. Second, the county child welfare unit does not have to be made a conservator first. Conservatorship and payment of costs are separate questions, and the controlling one is indigency.

Currency note

This opinion was issued in 1989. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Family Code provisions cited here (the old sections 11.10, 11.11, 11.12, and 11.18) were recodified and renumbered in a comprehensive rewrite of the Family Code after 1989, and the rules governing court costs and indigency have been amended since. Anyone facing a present-day question about who pays for a court-ordered evaluation of a child should consult the current Family Code and the current Rules of Civil Procedure rather than rely on this 1989 analysis.

Who this opinion affected (as of 1989)

Family law district judges: The opinion confirmed they could order a county's general fund to pay for psychological testing and counseling of children in a divorce, once the parents were found indigent.

County auditors and commissioners: The opinion told them such an order was valid and the general fund could be charged, so long as the indigency finding was made; it also noted the judge could have used the Department of Human Services or a Child Welfare Fund instead.

Indigent parents and their children: The opinion meant a family with no money would not have to pay for a court-ordered psychological evaluation, because the county would cover it.

Common questions

Can a Texas judge make the county pay for a child's psychological evaluation in a divorce?
Yes, if the parents are found indigent. The AG concluded a family law district judge may order the cost of psychological testing and counseling of children in a divorce paid from the county's general fund where the parents are found unable to pay.

Does the judge have to find the parents indigent first?
Yes. The AG concluded a determination of indigency must be made before costs are paid out of a county's general fund. If the parties can afford the costs, the general rule is that they pay them.

Does the county child welfare unit have to be named conservator before the county can be ordered to pay?
No. The AG concluded conservatorship and payment of costs are separate issues, and it is indigency, not conservatorship, that controls whether the county pays.

Background and statutory framework

The request came from the Dallas County Criminal District Attorney and concerned section 11.11 of the Family Code. In several divorce cases, a family law district court had, on its own motion, appointed the Dallas County Child Welfare Unit of the Texas Department of Human Services as managing conservator of children whose parents were divorcing, appointed a psychologist to test and counsel the children, and ordered the psychologist paid from the Dallas County General Fund. After the county auditor declined to pay, the court found the parents indigent and again ordered payment from the general fund.

The AG began with section 11.12, which authorizes a court to order a social study in any case affecting the parent-child relationship. From its reading of McPherson v. McPherson, 626 S.W.2d 349 (Tex. App.—Fort Worth 1981, no writ), the AG noted a social study may include psychological evaluation. Attorney General Opinion H-362 (1974) had determined that fees for performing social studies are assessable as court costs, consistent with section 11.18(c), which requires that when the Department of Human Services performs a social study the fee be taxed as costs. Section 11.18(a) authorizes the court to award costs, and the award lies within the trial court's discretion. See Reames v. Reames, 604 S.W.2d 335 (Tex. Civ. App.—Dallas 1980, no writ).

Generally, costs are not taxable against one who is not a party to the suit. In County of Dallas v. Gibbs, 525 S.W.2d 500 (Tex. 1975), the Texas Supreme Court held Dallas County had been improperly ordered to pay ad litem fees, reasoning that because the county was neither an actual nor a nominal party it could not be held liable for costs. The AG distinguished Gibbs on the ground that there was no indication of indigency there. In the cases at hand, the finding of indigency and the appointment of the Dallas County Child Welfare Unit as managing conservator gave the county an interest in the suit. The effect of a finding of inability to pay (see generally Tex. R. Civ. Proc. 145) is to relieve the parties of the obligation to pay court costs, with the result that the county pays them. This paralleled section 11.10(e), which requires that an attorney appointed to represent indigent children or parents in a termination case be paid from the county's general funds. The AG added that the judge might more appropriately have ordered the studies done by the Department of Human Services or paid from a Child Welfare Fund if the county had one, but concluded the judge nevertheless acted within his authority.

On the supplemental questions, the AG concluded a determination of indigency must be made before costs are paid from the general fund. Section 11.10(a) provides that where the court determines the parties are able to defray the ad litem's compensation, those costs may be ordered paid by either or both parties; subdivision (e) provides for payment from the general fund only if indigency is shown. The general rule for civil cases is that non-indigent litigants pay costs. County of Dallas v. Gibbs, supra; Tex. R. Civ. Proc. 125. Finally, it is not necessary that a county child welfare unit be made a conservator before the county is ordered to pay costs out of the general fund; conservatorship and payment of costs are two separate issues, with indigency the primary issue for payment.

Citations

Cases:

• McPherson v. McPherson, 626 S.W.2d 349 (Tex. App.—Fort Worth 1981, no writ) (social study may include psychological evaluation)
• Reames v. Reames, 604 S.W.2d 335 (Tex. Civ. App.—Dallas 1980, no writ) (award of costs is within the trial court's discretion)
• County of Dallas v. Gibbs, 525 S.W.2d 500 (Tex. 1975) (costs not taxable against a county that is neither an actual nor nominal party)

Statutory authority and rules:

• Family Code § 11.10(a), (e) (payment of ad litem costs; general fund pays only if indigency shown)
• Family Code § 11.11 (costs and expenses in child welfare cases)
• Family Code § 11.12 (court may order a social study), § 11.12(b) (Acts 1987, 70th Leg., ch. 1052, § 6.01, at 3571)
• Family Code § 11.18(a) (court may award costs), § 11.18(c) (Department of Human Services study fee taxed as costs)
• Tex. R. Civ. Proc. 125 (litigants pay costs), 145 (effect of affidavit of inability to pay)

Prior Attorney General opinion:

• Attorney General Opinion H-362 (1974) (fees for social studies assessable as court costs)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1045
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1989/jm1045.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor OCR errors may remain; the linked PDF is authoritative.

May 16, 1989

Honorable John Vance
Criminal District Attorney
Services Building, Suite 202
Dallas, Texas 75202

Opinion No. JM-1045

Re: Whether a district court may direct that payment of costs and expenses in a child welfare case under section 11.11 of the Family Code be made from a county's general fund, and related questions (RQ-1499)

Dear Mr. Vance:

You ask whether, under section 11.11 of the Family Code a district court may order payment of costs and expenses against the general fund of a county, if such costs and expenses are for the safety and welfare of a child (a for psychological evaluations and therapy).

You explain that in several cases a family law district court, on its own motion, appointed the Dallas County Child Welfare Unit of the Texas Department of Human Services to be managing conservator of children whose parents had filed for a divorce. The court also appointed a psychologist to perform psychological testing and counseling on the children and ordered that the psychologist be paid out of the Dallas County General Fund. When the county auditor declined to pay the bills, the court held hearings, found the parents to be indigent, and again ordered that the psychologist's bills be paid out of the general fund.

Section 11.12 of the Family Code authorizes a court to order the preparation of a social study in any case affecting the parent-child relationship. We understand from our reading of McPherson v. McPherson, 626 S.W.2d 349 (Tex. App. - Fort Worth 1981, no writ), that the term "social study" may include psychological evaluation. In Attorney General Opinion H-362 (1974), this office determined that fees for the performance of social studies are assessable as court costs. That opinion is consistent with section 11.18(c) of the Family Code which requires that when the Department of Human Services performs a social study, the fee for the study shall be taxed as costs.

Section 11.18(a) authorizes the court to award costs, and the award of costs lies within the discretion of the trial court. See Reames v. Reames, 604 S.W.2d 335 (Civ. App. - Dallas 1980, no writ). Generally, costs are not taxable against one not a party to a suit. In County of Dallas v. Gibbs, 525 S.W.2d 500 (Tex. 1975), the Texas Supreme Court found that Dallas County had improperly been ordered to pay ad litem fees. The court said that inasmuch as the county was "neither an actual nor a nominal party," it could not be held liable for costs. Id. at 501. However, that case is readily distinguishable from those under consideration here, because there was no indication of indigency in that case. In these cases, the finding of indigency and the appointment of the Dallas County Child Welfare Unit as managing conservator give the county an interest in the suit.

The effect of the filing of an affidavit of inability to pay or, in these cases a court finding of inability to pay, is to relieve parties of the obligation to pay the costs of court. See generally Tex. R. Civ. Proc. 145. The result of that relief is that the county pays the costs of court.

Section 11.10(e) of the Family Code requires in cases regarding the termination of the parent-child relationship that an attorney appointed to represent indigent children or parents be paid out of the general funds of the county. This situation is sufficiently similar to the appointment of attorneys ad litem and payment of ad litem fees to warrant payment of the costs out of the county's general fund.

The judge might have more appropriately ordered the studies to be done by the Department of Human Services[1] or ordered the costs payable out of the Child Welfare Fund (if Dallas County has one). We believe nevertheless that he acted within his authority, and the psychologist's fees should be paid out of the county's general fund in accordance with the court order.

Having settled your primary question, we can now go on to answer your supplemental questions, which read as follows:

Is it necessary to find parents, or other parties to a suit affecting the parent-child relationship, to be indigent or unable to pay costs under Section 11.10 of the Texas Family Code or other applicable statutes before payment may be ordered out of the general fund of the county?

Is it necessary that a child welfare unit of the Texas Department of Human Services be made a conservator prior to entry of an order that the county pay costs out of the general fund?

A determination of indigency must be made prior to payment of costs out of a county's general fund. Section 11.10(a) expressly provides that when a court "determines that the parties or litigants are able to defray the costs of the ad litem's compensation . . . such costs may be ordered paid by either or both parties." Subdivision (e) of that section provides for the payment of such costs out of the general fund only if indigency is shown. As noted above, the general rule for all civil cases is that litigants, if they are not indigent, pay costs. County of Dallas v. Gibbs, supra; Tex. R. Civ. Proc. 125.

In answer to your third and final question, it is not necessary that a county child welfare unit be made a conservator prior to an order that the county pay costs out of the general fund. Conservatorship and payment of costs are two separate issues: indigency is the primary issue in regard to the payment of costs. We can certainly envision an instance where a judge would order a social study prior to the appointment of conservators to help determine the best interests of a child of indigent parents, in which case the parents would not be liable for the cost of the social study or any other court costs.

SUMMARY

A family law district judge may order a county to pay the cost of psychological testing and counseling of children who are the subject of divorce where the parents are found to be indigent. It is necessary to have a determination of indigency prior to payment of costs out of a county's general fund. It is not necessary that a county child welfare unit be made a conservator prior to an order that the county pay costs out of the general fund.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Karen C. Gladney
Assistant Attorney General

Footnotes

1. We note that when the Department "is not a party or has no interest, the court shall appoint a private agency or person to conduct the social study." (Emphasis added.) Fam. Code § 11.12(b) as amended by Acts 1987, 70th Leg., ch. 1052, § 6.01, at 3571.