                                            KEN PAXTON
                                       ATTORNEY GEN.ERAL OF TEXAS




                                              March 13, 2017



The Honorable Richard Pena Raymond                      Opinion No. KP-0136
Chair, Committee on Human Services
Texas House of Representatives                           Re: Whether the State Long-Term Care
Post Office Box 2910                                     Ombudsman may register a position and testify
Austin, Texas 78768-2910                                 for or against legislation pending before the
                                                         Texas Legislature (RQ-0130-KP)

Dear Mr. Raymond:

        The State Ombudsman (the "Ombudsman") is the chief administrator of the Office of the
State Long-Term Care Ombudsman (the "Office"). TEX. HUM. RES. CODE § lOlA.251(5). As
discussed more fully below, both Texas and federal law authorize and require the Office to
recommend changes to the law it deems necessary concerning long-term care facilities and
services. You ask whether these state and federal duties allow the Ombudsman to "testify 'For'
or 'Against' proposed legislation" at a legislative committee hearing or whether the Ombudsman
may only "testify 'On"' legislation because of statutory ethics requirements applicable to state
agencies and employees. 1 Request Letter at 1.

        We begin by considering the authority and duties of the Ombudsman and the Office under
Texas law. Chapter 101A, subchapter F, of the Texas Human Resources Code governs the Office,
TEX. HUM. REs. CODE§§ lOlA.251-.264. The Department of Aging and Disability Services (the
"Department") operates the Office. Id. § lOlA.252; see also id § lOlA.001(2) (defining
"Department" as the Department of Aging and Disability Services). The Office must "provide
information to public agencies, legislators, and others that relates to the problems and concerns of
elderly residents." Id. § lOlA.261. Chapter lOlA specifically requires the Office to "analyze and
monitor the development and implementation of federal, state, and local laws, rules, regulations,
and policies relating to long-term care facilities and services and shall recommend any changes
the office considers necessary." Id. § lOlA.260 (emphasis added). Another statute also requires
the Office to make legislative recommendations when it prepares its annual report to the Governor
and the presiding officer of each house of the Legislature:

                (a) The office shall prepare an annual report that contains:



        1
         Letter from Honorable Richard Pena Raymond, Chair, House Comm. on Human Servs., to Honorable Ken
Paxton, Tex. Att'y Gen. at I (Sept. 21, 2016), https://www. texasattomeygeneral.gov/opinion/requests-for-opinion-
rqs ("Request Letter").
The Honorable Richard Pefia Raymond - Page 2                  (KP-0136)



                    (1) information and findings relating to the problems and
                    complaints of elderly residents; and

                    (2) policy, regulatory, and legislative recommendations to solve
                    the problems, resolve the complaints, and improve the quality of
                    the elderly residents' care and lives.

Id.§ IOlA.262 (emphasis added). 2

       In addition to these requirements, chapter 101A requires the Office and the Ombudsman
program to "operate in cooperation with any regulatory agency funded and mandated by the Older
Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and state statute." Id. § lOlA.253 ("Role
of Office"). Further, the chapter grants the Ombudsman and the Office all "powers and duties
required by state and federal law." Id. § lOlA.254. Thus, we next consider powers and duties
required by federal law and incorporated into state law.

        Under the federal Older Americans Act (the "Act"), a state may obtain federal funding by
establishing and operating "an Office of the State Long-Term Care Ombudsman office ... headed
by . . . the State Long-Term Care Ombudsman," to carry out a program meeting specified
requirements. 42 U.S.C. § 3058g(a)(l)-(3). Under federal law, the Ombudsman has a duty to:

                (i) analyze, comment on, and monitor the development and
                implementation of Federal~ State, and local laws, regulations, and
                other governmental policies and actions, that pertain to the health,
                safety, welfare, and rights of the residents, with respect to the
                adequacy of long-term care facilities and services in the State; [and]

                (ii) recommend any changes in such laws, regulations, policies, and
                actions as the Office determines to be appropriate[.]

Id. § 3058g(a)(3)(G)(i)-(ii). Federal regulations also require that policies and procedures for an
ombudsman program enable a state ombudsman to independently recommend changes to the law
without necessarily representing the position of the state agency that operates the ombudsman
office (in Texas, the Department and the Office, respectively). 45 C.F.R. § 1324.1 l(e)(8); see also
id.§ 1324.13(a)(7)(i), (ii)(functions of Ombudsman). Moreover, "[s]uch procedures must exclude
the Ombudsman and representatives of the Office from any state lobbying prohibitions to the
extent that such requirements are inconsistent with [provisions of the Act governing state
ombudsman offices]." Id. § 1324.ll(e)(5)(i); see also 42 U.S.C. § 3058g, Pub. L. No. 102-375,
§ 712, 106 Stat. 1277.

         Considering these state and federal duties of the Ombudsman, we next review Texas laws
related to lobbying. Section 556.006 of the Government Code, captioned "Legislative Lobbying,"
restricts a state agency from using "appropriated money to attempt to influence the passage or


         2
           See, e.g., OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN, ANNUAL REPORT (Nov. 2014),
 https://www.dads.state.tx.us/news_info/ombudsman/docs/13- l 4annualreport.pdf (last visited Feb. 16, 2017).
The Honorable Richarq Pefia Raymond - Page 3              (KP-0136)



defeat of a legislative measure." TEX. Gov'T CODE § 556.006(a); see also id. § 556.008
(prohibiting a state agency from using "appropriated money to compensate a state officer or
employee who violates" subsection 556.006(a)). Thus, in some circumstances, subsection
556.006(a) does not allow an agency representative to testify in favor of or against particular
legislation at a legislative committee hearing. The Ombudsman's recommendation of a new law
would be an "attempt to influence the passage or defeat of a legislative measure," which subsection
556.006(a) prohibits. Id. § 556.006(a). To the extent that subsection 556.006(a) prohibits the
Ombudsman from performing her statutory duty to comment on the law and make
recommendations, it conflicts with chapter IOlA of the Human Resources Code and 42 U.S.C. §
3058g. Compare TEX. Gov'T CODE § 556.006(a), with TEX. HUM. RES. CODE §§ lOlA.260,
.262(a)(2), and 42 U.S.C. § 3058g(a)(3)(G)(i), (ii).

        Courts must harmonize statutes and give effect to each unless the statutes are
irreconcilable. See TEX. Gov'T CODE §§ 311.025(b), .026(a). While subsection 556.006(a)
generally prohibits lobbying, subsection (b) states further that it "does not prohibit a state officer
or employee from using state resources to provide public information or to provide information
responsive to a request." Id. § 556.006(b) (emphasis added). While no judicial opinion has
considered the issue, a court would likely conclude that when a statute specifically requires an
agency representative to comment on the law and make recommendations, the statute itself is a
legislative request under subsection 556.006(b). That being the case, the Ombudsman's statutorily
required comments and recommendations constitute responsive information that section
556.006(b) allows, and therefore the Ombudsman may provide such comments and
recommendations at a legislative hearing without violating subsection (a). See Texans Uniting/or
Reform & Freedom v. Saenz, 319 S.W.3d 914, 930 (Tex. App.-Austin 2010, pet. denied)
(concluding that the lobbying prohibition in section 556.006 did not apply to prohibit federal
legislative advocacy in light of another statute specifically authorizing an agency to advocate for
federal legislation on behalf of the State).

        Furthermore, when conflicting statutes cannot be reconciled, one of which is general and
the other is specific, the specific statute usually prevails, although the general statute may prevail
if it is the later enactment and manifests the intent that it prevail. See TEX. Gov'T CODE
§ 311.026(b); see also City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008) (stating "the
principle that a specific statute will ordinarily prevail over a general statute when the two cannot
be reconciled"). Subsection 556.006(a) of the Government Code applies generally to state agency
officers and employees who attempt to influence the passage of legislation without regard to the
subject or particular circumstances. See TEX. Gov'TCODE § 556.006(a). In contrast, chapter 101A
of the Human Resources Code applies only to the Ombudsman and employees of the Office,
requiring them to comment on and make recommendations only about laws relating to long-term
care facilities and services. TEX. HUM. RES. CODE §§ lOlA.260, .262(a)(2), see also 42 U.S.C.
§ 3058g. A court would likely conclude that these duties in the Human Resources Code are
specific legislation, while the prohibition in section 556.006 of the Government Code is general.
The Honorable Richard Pefia Raymond - Page 4                       (KP-0136)



        The Legislature enacted the prohibition in section 556.006 of the Government Code in
1997, and the legislation establishing the duties of the Office and the Ombudsman in 1989. 3
Nevertheless, nothing in the 1997 legislative enactment manifests the intent that the general
prohibition against attempting to influence the passage or defeat of legislation prevails over the
Ombudsman's specific statutory duties to comment and make recommendations concerning state
law. Therefore, a court would likely conclude that the duties of the Office and the Ombudsman to
comment and make recommendations under sections lOlA.260 and lOlA.262 of the Human
Resources Code prevail as exceptions to the general prohibition in section 556.006 of the
Government Code. See Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 297 (Tex.
2011) (stating the general rule that "a specific statutory provision prevails as an exception over a
conflicting general provision"). Accordingly, the Ombudsman may register a position and testify
for or against legislation pending before the Texas Legislature to the extent necessary to perform
her state and federal duties. 4




          3Compare  Act of May 28, 1997, 75th Leg., R.S., ch. 1035, § 86, 1997 Tex. Gen. Laws 3845, 3866-67,
 amended by Act of May 29, 1999, 76th Leg., R.S., ch. 1498, § 1, 1999 Tex. Gen. Laws 5153, 5154-55, with Act of
 May 9, 1989, 7lst Leg., R.S., ch. 159, § 1, 1989 Tex. Gen. Laws 538, 538-40, renumbered and amended by Act of
 March 26, 2015, 84th Leg., R.S., ch. 1, § 4.361, 2015 Tex. Gen. Laws 1, 828, 833 (adding chapter lOlA,
 subchapter F).

          4 Because we resolve this issue on state-statutory-construction grounds, we need not address whether federal

 law imposes conditions with respect to lobbying that attach to federal funds received by the State and appropriated
 for the Office's use. See Tex. Att'y Gen. Op. No. JC-0161 (1999) (considering whether federal funds granted to the
 Texas Council for Developmental Disabilities fall within the reach of the State's lobbying prohibitions).
The Honorable Richard Pefia Raymond - Page 5            (KP-0136)



                                      SUMMARY

                       Chapter IOIA of the Human Resources Code requires the
               State Long-Term Care Ombudsman to comment on and make
               recommendations about laws relating to long-term care facilities and
               services. Chapter 556 of the Government Code does not preclude
               the Ombudsman from performing her statutory duty to make such
               comments and recommendations. Accordingly, the State Long-
               Term Care Ombudsman may register a position and testify for or
               against legislation pending before the Texas Legislature to the
               extent necessary to perform her statutory duty.

                                             Very truly yours,




                                             KEN PAXTON
                                             Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

·BRANTLEY STARR
 Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee
