                  THE     ATTORNEY    GENERAL
                             OF TEXAS



                               January     11, 1990


Robert Bernstein,   M.D., F.A.C.P.             Opinion   No.   JM-1135
Commissioner
Texas Department   of Health                   Re:   Construction    of the
1100 West 49th Street                          Human     Immunodeficiency
Austin, Texas     78756-3199                   Virus Services Act, arti-
                                               cle 4419b-4, V.T.C.S.
                                               (RQ-1886)

Dear   Dr.   Bernstein:

      you ask three questions regarding   the interpretation   of
section 2.03(h) of the Human Immunodeficiency    Virus Services
Act (hereinafter   the act).  V.T.C.S.   art. 441913-4, et   sea.
Before we analyze that particular   provision,  we will briefly
examine the act as a whole.

      Article   1 of     the act includes       definitions     and   desig-
nates   the    Texas     Department     of    Health    (hereinafter      the
department)    as "the primary        resource for HIV education"           in
the state.     Article 2 requires the department             to    establish
and administer      a state     grant    program for      HIV    education,
prevention,    risk reduction      programs,    treatment,    health,     and
social service      programs      for persons      with   HIV    infection.
Article 3 establishes          an   HIV medication       program     in   the
department.     Article      4 relates     to   HIV testing      and    coun-
seling.    Article     5   establishes     an   education     program     for
state employees      and     requires     state    agencies     to   develop
workplace   guidelines     concerning     persons who have AIDS or HIV
infection.     Article 6 requires the Texas Department              of Human
Services to establish         demonstration     projects    for    providing
nursing care to persons with AIDS or HIV infection.                  Article
4419b-5, V.T.C.S.,       authorizes     the department       to develop      a
model education      program for       school-age    children      regarding
sexual issues and        AIDS.    Article     4419b-6, V.T.C.S.,        esta-
blishes the     Texas Human       Immunodeficiency      Virus    Medication
Program under      the    Texas    Health     and   Human    Services     Co-
ordinating    Council.

      The focus    of your   inquiry is article 2 of the                 act,
which establishes      a state    grant   program.   Section             2.01
of the   act   designates    the   department    to establish             and
administer   the    program.     Section   2.02(a)  requires              the




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Dr. Robert    Bernstein    - Page    2     (JM-1135)




department    to   establish     application     procedures     and   eligi-
bility    guidelines      for   the    state    grants.      Section     2.03
enables the board       to adopt rules        relating to the       services
furnished   under the program,        the priorities     of the     program,
and a process     for resolving     disputes between the         department
and a program receiving          funds.    While only     a third of      the
available    funds    are to    be used     for education,       prevention
and risk reduction,        V.T.C.S.    art.    441913-4, 5 2.03(g),       the
department    is to give special consideration           to organizations
that serve persons        under 18 years       of age.    J&     5 2.03(d).
Section 2.03(f) requires education           grants to be      distributed
so as    not to    duplicate     existing    programs    and   to    provide
education   services      to   "populations     engaging     in behaviors
conducive     to   HIV    transmission."        Section     2.04    requires
programs   funded     under    article     2 to    use   information      and
educational    materials     that are     consistent    with the     current
findings of the       United States Public         Health Service.        The
department    is to evaluate       funded programs,      is, 5 2.06,      and
to require funded       programs to submit         records specified        by
the   department.       L      S 2.08.      The    department     is     also
required to      review    financial    records     of   programs      funded
under this article.        re, 5 2.09.      Apparently    the    department
developed   the    guidelines,1      a copy of      which was     submitted
with your letter, pursuant         to section 2.02(a).

      Section   2.02(a)     of   the    act   grants    the   department
express authority     to    develop     eligibility     guidelines     for
grant applicants.       However,     an    administrative     agency    is
bound to exercise    its    powers consistently      with the     statute
that grants them.     S    .-e,a      Railroad    Comm#n v. Shell      Oil
Co., 161 S.W.2d 1022ee(Tex.';942)         ; Gulf   Coast Water Co.      v.
Gtwriaht,     160 S.W.2d 269 (Tex. Civ. App. - Galveston             1942,
writ ref‘d w.o.m.).

      Your questions concern the department's                responsibility
for the grant program established  in article               2.  Your    first
question  reads as follows:

          What is the proper        construction       of Subsection
          2.03(h)?




      1. We understand    that    the guidelines,   now   identified
as being in "draft form," have not been formally adopted           or
published    in  the    Texas      Register    pursuant     to    the
Administrative  Procedure     and   Texas Register    Act,   article
6252-13a. V.T.C.S.




                                         p. 5978
Dr. Robert     Bernstein   - Page    3     (JM-1135)




     Section     2.03(h)   reads    as follows:

         Grants may     not be   awarded to     an entity     or
         community    organization     that    advocates      or
         promotes   conduct    that   violates     state    law.
         This subsection    does    not prohibit the      award
         of a grant to an entity or community           organi-
         zation    that   provides    accurate     information
         about ways to reduce the risk of exposure            to
         or transmission    of HIV.

     The department's   proposed guidelines  first quote     sec-
tion 2.03(h) and follow with.the department's    interpretation
of the subsection   as follows:

         This language      has   been interpreted       by   the
         Texas Department     of    Health to    mean that      an
         entity   or    community     organization      is     not
         eligible to receive a grant under Article               2
         of the bill     if the     entity, organization        or
         any person     employed by      or volunteering       for
         the entity or      organization    acts directly       or
         indirectly   within     the scope     of his    or   her
         activities   for    the    organization     (including
         the person's mere presence upon the            premises
         of the entity or organization)2         to   influence
         legislation     by   encouraging,      supporting      or
         actively    recommending       the  modification       or
         repeal [of]     state     laws regulating      or   pro-
         hibiting   types of personal conduct recognized
         by medical experts to transmit HIV infection.
         The    department       further      interprets       the
         language   'state     laws   regulating     or    prohi-
         biting types of      personal    conduct    recognized
         by medical experts to transmit HIV infection'
         to include at least:

             1.  Sec. 21.06  of  the Penal             Code,   pro-
         hibiting homosexual  conduct;'



      2.  This is only one of     many provisions     of the    guide-
lines that raise serious constitutional       issues.     Inasmuch as
we determine    that the   proposed guidelines       are   completely
outside the authority     granted by the     statute, we need       not
address    the   constitutional     concerns      of     freedom     of
association,   freedom of speech, and freedom to petition           the
government.




                                         p. 5979
Dr. Robert    Bernstein   - Page   4     (JM-1135)




              2.  Sets . 43.02   and   43.04 of        the     Penal
          Code,   relating    to   prostitution         and      the
          promotion  of prostitution:

              3.  Chapters   481 and 483 of the Health and
          Safety Code, regulating    the use of controlled
          substances,   simulated  controlled  substances,
          and dangerous    drugs.

The department    more   specifically   interprets            the   language
"influence  legislation"   to prohibit:

          1) Any    attempt to influence any   legislation
          through   a move to affect the opinions of     the
          general   public or any segment thereof;   and

          2)   Any attempt to influence     any    legislation
          through    communication    with    any    member    or
          employee of a legislative       body    or with     any
          government    official   or   employee      who     may
          participate    in the formulation       of    legisla-
          tion.

          3)   The expenditure     of   any    amount    to  in-
          fluence the selection,      nomination,     election,
          or   appointment    of   any    individual     to  any
          federal, state, or local       public office in       a
          political    organization,       or    election     of
          Presidential   or   Vice    Presidential     electors
          (whether or not such individuals        or   electors
          are    selected,     nominated,       elected,      or
          appointed).

      In   your   letter,     YOU   indicate      that    the   department
developed   its guidelines     based on its understanding          that the
legislature    intended    that grant       funds   not be     awarded     to
organizations    that lobby for the repeal of certain              criminal
statutes.    You indicate that this understanding             was grounded
in comments made by the state representative              who    originally
proposed   the language in question here.           While we think that
the statute is clear on its         face and needs no further           con-
struction,   we reiterate     the rule that legislative          intent    is
not to be discovered      in   the expressed      intent of one       member
of the legislature.       Commissioners'      Court of El Paso        County
V.  El Paso Countv Sheriff's       DeDUtiSS    AssIn., 620 S.W.2d         900
 (Tex. Civ. App. - El Paso 1981, writ ref'd n.r.e.).                 If   the
legislature    intended    to   disallow grants        to   organizations
that lobby, such intent is not expressed             in the law.




                                       p. 5980
Dr. Robert    Bernstein    - Page   5     (JM-1135)




      This statute is clear on        its face.    The act   disallows
the awarding of grants to entities that advocate or             promote
conduct that violates       state law.     When the    language of      a
statute is     clear and    unambiguous,    the plain     language    is
controlling.     Seem             Sutherland,   Statutory     Construc-
tion S 46.01     8t sea,    (4th ea.).     Black's    Law   Dictionary
defines "advocate"      as  "To speak    in favor of    or defend     by
argument.    To    support, vindicate,     or recommend     publicly.l*
Black's Law Dictionary       51 (5th ed.     1979).   The   dictionary
defines "promote"     as "To contribute    to growth,     enlargement,
or prosperity    of: to forward:     to further: to encourage;        to
advance."    &     at 1093.

      The use     of   controlled'    substances,     for    example,     is
conduct that violates        state law.      For one     to advocate      or
promote    the    use   of    controlled     substances,      one     would
necessarily    defend    their use     or   encourage    others    to   use
them.    While lobbying      for the    repeal or     amendment    of   the
Controlled    Substances    Act is a type of advocacy,          it is   not
advocacy of      conduct    prohibited     by law.     A   lobbyist     may
advocate     a change      in the     law   by   encouraging       various
legislative    actions.     For example he may seek the          introduc-
tion of a bill into the         legislature,    or he may encourage        a
particular    vote,    or he    may urge    an amendment      to a bill;
however,   none of these acts violates         state law.

      Lobbying activity,        identified    in    the proposed      guide-
lines as    activity that       disqualifies     an   organization      from
receiving   grant    funds, is a peculiarly           protected    form    of
speech.    It is, first of all, speech protected            by the United
States and the Texas        Constitutions.       U.S. Const. amend.        I;
Tex. Const.     art.    I,   5 8; Attorney       General    opinion     H-18
(1973).    Secondly,    it   is speech that       is regulated     in   that
persons who receive or expend funds to influence               legislation
must   disclose     the    amounts    received      and   expended.      See
aenerallv   Gov't Code ch.       305.    In adopting that       regulatory
statute,    the   legislature       recognized      the   importance       of
lobbying activity to democratic          institutions     as follows:

          The   operation     of    responsible      democratic
          government    requires     that    the    people     be
          afforded the fullest opportunity        to    petition
          their government      for   the redress     of    grie-
          vances and to     express freely their        opinions
          on legislation,     pending     executive     actions,
          and current issues      to individual     members     of
          the   legislature,      legislative       committees,
          state agencies,    and members of the       executive
          branch.




                                        p. 5981
                                                                               ,

Dr. Robert      Bernstein    - Page   6     (JM-1135)




Gov't    Code   5 305.001.

     Furthermore,   the legislature    has elsewhere    prohibited
the expenditure   of appropriated   funds for lobbying activity.
The current Appropriations     Act prohibits  the    use of   funds
that are appropriated    in the act for influencing    the passage
or defeat of any legislative     measure. Acts 1989, 71st Leg.,
ch. 1263, art. V, S 5, at 5760.

      The distinction    between lobbying activity        and     advocacy
of conduct that violates      state law is illustrated         by    recent
examples of public officials'        advocating    changes in criminal
statutes.    Some public     officials    concerned     about the      drug
problem   in this country     have recently advocated        the     repeal
of criminal    penalties    attached     to   the use    of    controlled
substances.    Similarly,    a brief     submitted   pursuant     to   your
letter describes    the testimony     of    a former chairman      of    the
Texas Board of     Health and Chief       Administrator     of    Parkland
Hospital   in Dallas before the Texas House of Representatives
Appropriations    Committee    in  1987.     The chairman,      according
to the brief, advocated      the   repeal of section 21.06 of            the
Penal Code to encourage      homosexuals     to voluntarily     seek    HIV
testing and counseling.       Under the department's         interpreta-
tion of section 2.03(h),~ those officials          would be ineligible
to receive education     grants.

      On its   face,     subsection   2.03(h)    only   prohibits     the
grant of funds     to persons who      advocate or promote       illegal
conduct.     This    language    does   not   authorize     the     broad
restrictions     reflected      in    the    department#s       proposed
guidelines.    The department's       interpretation    that    lobbying
activity disqualifies      grant applicants     is without    statutory
support.

      Your second  question     is based on    the   premise    that
section 2.03(h) precludes     the award of    grants to    entities
that lobby   for revision    or   repeal of   criminal    statutes.
Having determined   that such     an interpretation     is without
merit, it is unnecessary    to answer your second question.

        Finally,   you   ask:

           Does Subsection     2.03(h), or     any other   pro-
           vision of S.B. No. 959 [the act] require          the
           department   to exclude from consideration       [for
           a grant] an organization      that has homosexuals
           among its    officers,   board,    general   member-
           ship,   paid   staff     or   volunteers,     merely
           because the individuals      are homosexuals?




                                          p. 5982
Dr. Robert   Bernstein    - Page     7      (JM-1135)




      Neither section 2.03(h) nor any other provision          of    the
act requires     that   result.     The only   statutory     basis    in
section 2.03(h)      to deny   a grant   to an    organization    is   a
finding by the department      that the organization     advocates    or
promotes   illegal conduct.     The   composition   of an    organiza-
tion's membership      or  board    is not   determinative     of    the
organization's    eligibility   for a grant.

                              SUMMARY

             Section    2.03(h)    of   the   Human      Immuno-
         deficiency    Virus Services      Act prohibits      the
         award of    a   state    grant    to  an    entity    or
         organization      that    advocates     or    promotes
         conduct that violates       state law.     Lobbying   is
         not conduct     that    violates   state    law.     The
         composition    of   an organization's       membership
         or   board     is not       determinative      of    the
         organization's     eligibility    for a grant.




                                           Ll lNalx%
                                             Very   truly   yo


                                                  A
                                             JIM      MATTOX
                                             Attorney General    of Texas

NARYKELLER
First Assistant    Attorney     General

LOU MCCR&RY
Executive Assistant      Attorney        General

JUDGE ZOLLIE STEAELEY
Special Assistant  Attorney         General

RICK GILPIN
Chairman,  Opinion    Committee

Prepared by Karen C. Gladney
Assistant Attorney General




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