                              ATTORNEYGENERAL                      OF TEXAS
                                           GREG        ABBOTT




                                              October 30,2006



The Honorable Michael A. Stafford                        Opinion No. GA-0476
Harris County Attorney
1019 Congress, 15thFloor                                Re: -ether the Texas Department ofFamily and
Houston, Texas 77002                                    Protective Services may contract with a
                                                        governmental entity to provide substitute care and
                                                        case management services (RQ-0475-GA)

Dear Mr. Stafford:

       On behalf of the Harris County Protective Services for Children land Adults (the
“HCPSCA”), you ask three questions: (1) whether the Texas Department of Family and Protective
Services (the “Department”) may contract with a governmental entity to provide substitute care and
case management services; (2) whether an independent administrator may contract with a
governmental entity to provide such services; and (3) whether a governmental entity may provide
such services.’

        HCPSCA provides protective services for children and adults under authority from both the
Harris County Commissioners Court and the Department. TEX. HUM. REs. CODEANN. § 152.1073
(bt(c), (g) (Vernon 200 1); see also Request Letter, supra note 1, at i The HCPSCA has the powers
and duties of a county child welfare board. TEX. HUM. REs. CODE ANN. 5 152.1073(b) (Vernon
2001). As a county child welfare board, HCPSCA “is an entity ofthe [D]epartment for purposes of
providing coordinated state and locai public welfare services for children and their families and for
the coordinated use of federal, state, and local funds for these services.” TEX. FAM. CODEANN.
§ 264.005(d) (Vernon 2002). You inform us that the HCPSCA provides “substitute care and case
management services for children in Harris County by contracting with [the Department],” and other
services apparently by virtue of the Harris County Commissioners Court and section 152.1073 of
the Human Resources Code. See Request Letter, supra note 1, at 1; TEX. HUM. RES. CODE ANN.
5 152.1073 (Vernon 2001). The HCPSCA seeks guidance about its role in providing substitute care,
case management, and other services for the children of Harris County after the recent overhaul of
child protective services by Senate Bill 6, enacted by the Seventy-ninth Legislature. See Request
Letter, supra note 1i at l-2; Act of May 29, 2005, 79th Leg., R.S., ch. 268, 2005 Tex. Gen. Laws
621,621-720.


           ‘Letter from Honorable Michael A. Stafford, Harris County Attorney, to Honorable Greg Abbott, Attorney
General ofTexas, at I (Apr. 13,2006) (on tile with the Opinion Committee, also available athap://~.oag.state.a.us)
[hereinafter Request Letter].
The Honorable Michael A. Stafford - Page 2            (GA-0476)



I.     Privatization   under Senate Bill 6

        Senate Bill 6 was enacted as a systemic reform of protective services programs. See HOUSE
COMM.ONHUMANSERVICES,BILLANALYSIS,Tex. C.S.S.B. 6,79th Leg., R.S. (2005) (“CSSB 6
would make dramatic, system-wide changes in protective services programs . . .“); SENATE
RESEARCHCTR., BILLANALYSIS,Tex. S.B. 6, 79th Leg., R.S. (2005) (“The bill responds to the
governor’s executive orders calling for the systematic reforms of Child and Adult Protective
Services.“); see also Tex. Gov. Exec. Order No. RP35 (July 2, 2004) (on file with the Opinion
Committee), available athttp:l/~.govemor.state.tx.us/divisions/press/exorders/~35        (last visited
Sept. l&2006). Among its major reforms, Senate Bill 6 privatizes certain services, reflected in its
addition of a new chapter 45 of the Human Resources Code, entitled “Privatization of Substitute
Care and Case Management Services,” and its revision of section 264.106 of the Family Code,
concerning the Department’s authority to contract for such services. See TEx. HUM.REs. CODEANN.
$5 45.001-.153 (Vernon Supp. 2006); TEX. F~hl. CODEANN. 5 264.106 (Vernon Supp. 2006).
Chapter 45 of the Human Resources Code directs the Department to “complete the statewide
privatization of the provision of substitute care and case management services” pursuant to a region-
by-region transition plan. See Bx. HUM.RES. CODEANN. §$ 45.002(a), .053(b), ,054 (Vernon
Supp. 2006). Chapter 45 defines “privatize” as “to contract with a private entity to provide certain
governmental services.” Id. 3 45.001(10). Both chapter 45 of the Human Resources Code and
section 264.106 of the Family Code define “substitute care” and “case management services.
Substitute care services are

               services provided to or for children in substitute care and their
               families, including the recruitment, training, and management of
               foster parents, the recruitment of adoptive families, and the
               facilitation of the adoption process, family preservation, independent
               living, emergency shelter, residential group care, foster care,
               therapeutic foster care, and post-placement supervision, including
               relative placement.

TEx. FAM.CODEANN. § 264,106(a)(5) (Vemon Supp. 2006); see also TEX.HUM.REs. CODEANN.
§ 45.001(13) (Vernon Supp. 2006) (the only difference in the two sections being that section 45.001
refers to “family reunification” rather than “family preservation”). Case management services are

                the provision of case management services to a child for whom the
                [Dlepartment has been appointed temporary or permanent managing
                conservator, including caseworker-child visits, family visits, the
                convening of family group conferences, the development and revision
                of the case plan, the coordination and monitoring of services needed
                by the child and family, and the assumption of court-related’duties,
                including preparing court reports, attending judicial hearings and
                permanency hearings, and ensuring that the child is progressing
                toward permanency within state and federal mandates.

 TEX. FAM. CODE ANN. § 264.106(a)(l) (Vernon Supp. 2006); TEx.’HUM. REs. CODE ANN. 5
 45.001(l) (Vernon Supp. 2006).
The Honorable Michael A. Stafford - Page 3           (GA-0476)



       In conjunction with chapter 45 ofthe Human Resources Code, section 264.106 ofthe Family
Code requires the Department to:

              (2)    either contract directly with private agencies as part of
                     regional community-centered networks for the provision of all
                     necessary substitute care and case management services or
                     use an independent administrator to contract for those
                     services; [and]

              (3)     contract with an independent administrator, if cost beneficial,
                      to coordinate and manage all services needed for children in
                      the temporary or permanent managing conservatorship of the
                      [Dlepartment in a designated geographic area[.]

TEx. FAM. CODE ANN. § 264.106(b)(2)-(3)          (Vemon Supp. 2006).         Such an independent
administrator is

              an independent agency selected through a competitive procurement
              process to:

                       (A) secure, coordinate, and manage substitute care services
              and case management services in a geographically designated area of
              the state; and

                      (B) ensure continuity of care for a child referred to the
              administrator by the [Dlepartment and the child’s family from the day
              a child enters the child protective services system until the child
              leaves the system.

TEX.FAM.CODEANN. 5 264,106(a)(2).(V ernon Supp. 2006); see also TEX.HUM.RES. CODEANN.
5 45.001(6) (Vernon Supp. 2006), (providing an identical definition).

II.    Whether theDepartment may contract with a governmental entity to provide substitute
       care and case management services

       The HCPSCA currently provides substitute care and case management services as an arm of
the Department. See Request Letter, supra note 1, at 1. Your first question is whether, under the
terms of Senate Bill 6, the Department may contract with another governmental entity, such as the
HCPSCA, to provide substitute care and case management services. Id.

        The Department’s authority to contract for substitute care and case management services is
found in section 264,106(b)(2) of the Family Code. That provision states that: “The [Dlepartment
shall      either contract directly with private agencies ,. for the provision of all necessary
substitute care and case management services or use an independent administrator to contract for
those services.” TEx. FAM. CODEANN. $ 264.106(b)(2) (Vernon Supp. 2006) (emphasis added).
The Honorable Michael A. Stafford - Page 4             (GA-0476)



Thus, section 264.106(b)(2) gives the Department two options. See Gum v. Phillips, 410 S.W.2d
202, 206 (Tex. Civ. App.-Houston 1966, writ refd n. r. e.) (“the word ‘or’ is a disjunctive
conjunction that indicates a choice between two alternatives generally corresponding to ‘either’ or
‘either this or that”‘). The Department’s first option is to contract directly with “private agencies
  . for the provision of all necessary substitute care and case management services.” TEX. FAM.
CODEANN. 5 264.106(b)(2) (Vernon Supp. 2006) (emphasis added). As a governmental entity is
not a private agency, the fist option does not allow the Department to contract with a governmental
entity for the provision of substitute care and case management services. See id. The Department’s
second option is to “use an independent administrator to contract for those services,” which does not
authorize~the Department to contract directly for substitute care and case management services. Id.
Thus, neither option under section 264.106(b)(2) authorizes the Department to contract directly with
a governmental entity to provide substitute care and case management services.

         As you note, the Department has general authority under section 40.058 of the Human
Resources Code to “enter into contracts or agreements with any person, including a’federal, state,
or other public or private agency, as necessary to perform any of the [Dlepartment’s powers or
duties,” which would include local public entities such as the HCPSCA. See Request Letter, supra
note 1, at 4; TEX. HUM. RES. CODE ANN. 5 40.058(a) (Vernon Supp. 2006). But section
264.106(b)(2)‘s specific provisions control over the Department’s general powers under section
40.058. See City ofDallas v. Mitchell, 870 S.W.2d 21,23 (Tex. 1994) (holding that laws applicable
in more limited circumstances control over “laws of general application”). Even if this were not the
encase,the Department, after full implementation of Senate Bill 6, does not have the power to provide
substitute care and, case management services in the fast place, except in an emergency or as a
provider of last resort. &e TEX.FAM.CODEANN.5 264.106(ik(k) (Vernon Supp. 2006); TEX.HUM.
RES. CODEANN. 5 45002@)(3)-(e) (V ernon Supp. 2006). Consequently, because Senate Bill 6
limits the Department’s substitute care and case management authority, the Department’s authority
to contract with others to perform its duties under section 40.058(a) of the Human Resources Code
is likewise limited. See TEX.HUM:RES. CODEANN.§ 40.058(a) (Vernon Supp. 2006). To answer
your first question, then, the Department does not have the authority to contract with a governmental
 entity to provide substitute care and case management services, except to the extent that the
 Department has the authority to provide those services in an emergency or as a provider of last resort
 under chapter 45 of the Human Resources Code and section 264.106of the Family Code.

III.,   Whether an independent administrator may contract with a governmental                entity to
        provide substitute care and case management services

        Senate Bill 6 requires the Department to “contract with an independent tidministrator, if cost
beneficial, to coordinate and manage all services needed for children in the temporary or permanent
managing conservator&p of the [Dlepartment in’s designated geographic area.” TEX.FAM.CODE
ANN. 5 264,106(b)(3) (Vernon Supp. 2006). An independent administrator’s services include
“recruiting and subcontracting with community-based substitute care and case management
providers to ensure a full array of services in defined geographic areas.” Id. $264.106(d)(l). Your
second question is whether such an independent administrator may contract with a governmental
entity who will in turn provide the needed substitute care and case management services, See
Request Letter, supra note 1, at 1.
The Honorable Michael A. Stafford - Page 5              (GA-0476)



        Section 264.106 does not expressly state that an independent administrator is forbidden to
contract with a governmental entity to provide substitute care and case management services. See
TEX. FAM. CODE ANN. § 264.106 (Vernon Supp. 2006). But that result is implied by the
Department’s mandate to “either contract directly with private agencies           or use an independent
administrator to contract for those services.” Id. 5 264.106(b)(2). Moreover, that result is implied
from reading Senate Bill 6 as a whole. See City ofSun Antonio v. Boerne, 111 S.W.3d 22,25 (Tex.
2003) (stating that in construing a statute, courts “determine legislative intent from the entire act and
not just its isolated portions”).

        The stated goal of Senate Bill 6 is to “complete the statewide privatization of the provision
of substitute care and case management services in this state.” TEX. HUM. RES. CODE ANN.
§ 45.002(a) (Vernon Supp. 2006);seealso id. § 45.001(10) (detining“privatize” tomeancontracting
with a private entity). To implement that goal, section 45.004 of the Human Resources Code
requires the Department to “develop a comprehensive strategy for contracting for management
support services from independent administrators on a regional basis,.” See id. § 45.004(a). The
strategy, “at a minimum, must . . require independent administrators to contract with private
agencies” that will increase options for children who are difficult to place and expand efforts to
recruit foster families and adoptive families. Id. 5 45,004(b)(2)(A)-(B) (emphasis added). More
broadly, the Department may use an independent administrator in its transition plan in a region only
if “the [Dlepartment determines that an independent administrator could manage and procure
substitute care and case management services contracts with private agencies               in a more
cost-beneficial manner.” Id. 3 45.004(a) (emphasis added). The negative implication of section
45.004 is that the Department may not utilize an independent administrator to contract with
governmental entities to provide, substitute care and case management services.

         Two provisions in the Family Code further support this construction. Section 264.106 of the
Family Code provides that the Department may be~the provider of last resort “in any region ofthe
state in which the [Dlepartment or an independentadministratorcontracting with the [Dlepartment
is unable to contract with a private agency to provide those services.” TEX. FAM. CODEANN.
5 264.106(k) (Vernon Supp. 2006) (emphasis added). And section 264.1063 provides that the
“[Dlepartment, in consultation with private entities under contract with either an independent
administrator or the [Dlepartment to provide substitute care or case management services, shall
establish a quality assurance program.” Id. $ 264.1063(a) (emphasis added). The underlying
assumption of both, sections ‘is that only private entities will provide substitute care and case
management services. When read as a whole and in light of its stated purposes, Senate Bill 6
authorizes an independent administrator to contract with private but not governmental entities to
provide substitute care and case management services.

        The Department informs us that it does not interpret section 264.106 of the Family Code and
chapter 45 ofthe H~umanResources Code to prohibit a governmental entity from providing substitute
care and case management services under a contract with an independent administrator because “the
requirement to privatize is a duty imposed upon [the Department] and should not be deemed as a
The Honorable Michael A. Stafford - Page 6                 (GA-0476)



required action of a private entity.“* In other words, the,Department argues that hitsobligation to
privatize is fulfilled upon contracting with an independent administrator that is a private entity. That
may be true with respect to the Department’s duty to privatize, but the stated goal of Senate Bill 6
is not merely to divest the Department of the duty to directly provide certain services, but to
“complete the statewide privatization of the provision of substitute care and case management
services in this state.” TEX. HUM.RES. CODE ANN. 5 45.002(a) (Vernon Supp. 2006) (emphasis
added); see also id. 5 45;001(10) (defining “privatize’). We decline to adopt the Department’s
construction because it is untenable in light of Senate Bill 6~‘sstated objective. Denfon County Elec.
Co-op., Inc. v. Pub. Util. Comm’n, 818 S.W.2d490,493 (Tex. App.-Texarkana 1991,writdenied)
(stating that while courts consider administrative interpretation of a statute, they will not adopt an
agency construction contrary to the statute, or allow agency interpretation of it to ascribe “express
powers which the statute clearly does not grant, and in fact impliedly withholds”).

IV.     Whether a governmental entity may provide community services if such services are
        considered to be substitute care and case management services

          Your final question is whether, under the terms of Senate Bill 6, a governmental entity such
 as the HCPSCA may continue to provide community services if such services are considered to be
 substitute care and case management services. See Request Letter, supra note 1, at 1. In addition
 to the authority it receives from the Department, the HCPSCA also works under the authority of the
 Harris County Commissioners Court. Xx. HUM.ms. CODEANN.§ 152.1073 (Vernon 2001). You
 state that Harris County initiated programs for foster &ildren such as a crisis care center to provide
.an initial psychological assessment of children coming into foster care, a health care clinic, an
 emergency shelter, and programs for other services. Request Letter, supra note 1, at 1. You do not
 state whether these programs are provided under authority from the Department or from the Harris
 County Commissioners Court. It appears that, at least in some instances, the HCPSCA provides
 services and programs for Harris County childrennot served by the Department. See CPS INHARRIS
 COUNTY, About CPS in Harris County, at http://www.hc-ps.orglabout-cps-in-hc.htm           (last visited
 Sept. l&2006).

        As explained above, a governmental entity does not have authority to provide general
substitute child care and case management services under contract with the Department or an
independent administrator, although a governmental entity may provide emergency services or
services as a provider of last resort on behalf of the Department. Thus, the HCPSCA may not
provide general community services if they are provided under the authority of chapter 45 of the
HumanResourccs Code and section264.106 oftheFamily Code. But Senate Bill 6 does notprohibit
the HCPSCA from providing community services under authority of the Harris County
Commissioners Court, which authority still exists under section 152.1073 of the Human Resources
Code.




         2Brief from Gerry Williams, General Counsel, Texas Depahlent     of Family and Protective Services, to
Honorable Greg Abbott, Attorney General ofTexas, at 3 (June 12,2006) (on tile with the Opinion Committee).
The Honorable Michael A. Stafford - Page 7         (GA-0476)




                                     SUMMARY,

                      Under the terms of Senate Bill 6, Seventy-ninth Legislature,
              the Department of Family and Protective Services may not contract
              with a governmental entity for the provision of substitute care and
              case management services except for emergency services or as a
              service provider of last resort. In a region that has an independent
              administrator to procure substitute care and case management service
              providers, the independent administrator may not contract with a
              governmental entity to provide such services. Notwithstanding the
              privatization of substitute care and case management services, a
              governmental entity may continue to provide community services to
              the extent authorized by other law.

                                            Very truly yours,




                                                       eneral of Texas


RENT C. SULLlVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. ~FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
