                                ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                                  February 17, 2011



Mr. Thomas M. Suehs                                              Opinion No. GA-0845
Executive Commissioner
Texas Health and Human Services Commission                       Re: Whether the Health and Human Services
4900 North Lamar                                                 Commission may adopt a definition of the term
Austin, Texas 78751                                              "affiliate" for purposes of section 32.0248 of
                                                                 the Human Resources Code (RQ-0903-GA)

Dear Mr. Suehs:

        Section 32.0248 of the Human Resources Code requires the Health and Human Services
Commission ("HHSC") to establish a "five-year demonstration project through the medical
assistance program to expand access to preventative health and family planning services for women."
TEX. HUM. RES. CODE ANN. § 32.0248(a) (West Supp. 2010). Subsection 32.0248(h) limits
HHSC's authority to contract with affiliates of entities that perform or promote abortions. See id.
§ 32.0248(h). You ask about HHSC's authority to adopt a specific definition of the term "affiliate"
for purposes of subsection 32.0248(h).!

       Assuming that subsection 32.0248(h) is constitutional, 2 we consider your question. We note
that you do not indicate that the proposed language has been put forward as a formal proposed
agency rule in accordance with the Texas Administrative Procedure Act. See Request Letter at 2;
see also TEX. GOV'T CODE ANN. §§ 2001.002 (West 2008) (entitling chapter "Administrative
Procedure Act"), 2001.023(a)-(b) (requiring notice of proposed rule to be published in Texas



         I See Request Letter at 1; see also Tex. Att'y Gen. Op. No. GA-0844 (2011) (describing demonstration project

within state's Medicaid program).

          'You appear to question HHSC's authority because of a concern that subsection 32.0248(h) may be
constitutionally infinn. See Request Letter at 2 (stating that the "distribution of funds to affiliates of elective abortion
providers has been the subject of litigation in Texas and elsewhere"). In Opinion GA-0844, we conclude that section
32.0248(h) is likely not preempted by federal Medicaid laws and regulations, and do not address other potential
constitutional infinnities. See Tex. Att'y Gen. Op. No. GA-0844 (2011) at 3 (observing that "other constitutional issues
may raise fact questions, which cannot be resolved in an attorney general opinion"). Because an agency rule must be
consistent with its statutory authority, should subsection 32.0248(h) be found to be unconstitutional, it would not serve
as authority for HHSC to define the term "affiliate." See Gerst v. Oak Cliff Savs. & Loan Ass 'n, 432 S.W.2d 702, 706
(Tex. 1968) ("In exercising the powers and the broad authority granted by the Legislature, the only requirement is that
[the agency's] rules and regulations must be consistent with the Constitution and Statutes of this State.").
 Mr. Thomas M. Suehs - Page 2                           (GA-0845)




 Register). Instead, it appears that you propose some language solely for the purpose of seeking our
 opinion. 3 We will advise you only generally.

          "An administrative agency 'has only those powers that the Legislature expressly confers
 upon it' and 'any implied powers that are reasonably necessary to carry out the express
 responsibilities given to it by the Legislature.'" SWEPI LP v. R.R. Comm'n, 314 S.W.3d 253,259
 (Tex. App.-Austin 2010, pet. filed) (quoting Pub. Uti!. Comm'n v. City Pub. Servo Bd., 53 SW.3d
 310,315 (Tex. 2001». Chapter 32 of the Human Resources Code does not grant HHSC express
 authority to adopt rules in connection to the project. See generally TEX. HUM. REs. CODE ANN.
 §§ 32.001-.257 (West 2001 & Supp. 2010). However, chapter 32 does grant HHSC express
 authority to adopt rules necessary for the proper and efficient operation of the medical assistance
 program, of which the five-year demonstration project is a part. Id. §§ 32.021(c), .021(a) (West
 Supp. 2010) (designating HHSC as agency to administer the medical assistance program provided
 in chapter 32). Under its authority to adopt rules to implement the medical assistance program in
 chapter 32, we believe HHSC has authority to define by rule terms necessary for it to comply with
 restrictions in subsection 32.0248(h) contained therein. See Tex. Att'y Gen. Op. No. GA-0708
 (2009) at 7 (concluding that the Edwards Aquifer Authority,under its authority to enforce its
 enabling act and to promulgate rules necessary to implement the act, had authority to "include its
 interpretation of undefined terms in its rules as necessary to implement the Act").

           "An agency may adopt only such rules as are authorized by and consistent with its statutory
  authority." Pruett V. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447,452 (Tex. 2008). A rule may not
  impose additional burdens, conditions, or restrictions that are inconsistent with the statutory
  provisions. See Cummins V. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d
  34,57 (Tex. App.-Austin 2005, pet. denied). In deciding whether an agency has exceeded its rule-
. making powers, the determinative factor is whether the rule's provisions are "in harmony with the
  general objectives of the Act involved." Gerst, 432 S.W.2d at 706. And "[t]ypically construction
  of a statute by the administrative agency charged with its enforcement is entitled to serious
  consideration, so long as the construction is reasonable and does not contradict the plain language
  of the statute." Tex. Bankers Ass 'n V. Ass'n of Cmty. Orgs.for Reform Now (ACORN), 303 S.W.3d
  404,408 (Tex. App.-Austin 2010, pet. filed) (quoting Tarrant Appraisal Dist. V. Moore, 845
  S.W.2d 820, 823 (Tex. 1993». With these principles, and advising you only generally, we can
  advise you that HHSC does have the authority to adopt by rule a definition of "affiliate" that is
  consistent with subsection 32.0248(h) and that does not impose additional burdens, conditions, or
  restrictions.




          3you tell us that HHSC is "considering proposing administrative rules that define the term 'affiliate'" and seek
 our opinion of potential proposed language before you do so. Request Letter at 2.                                  .
Mr. Thomas M. Suehs - Page 3                   (GA-084S)




                                        SUMMARY

                       The Health and Human Services Commission does have
               authority to adopt by rule a definition of "affiliate" that is consistent
               with subsection 32.0248(h), Texas Human Resources Code, and that
               does not impose additional burdens, conditions, or restrictions.

                                               Very truly yours,




DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
