                 THE    ATTORNEY          GENERAL
                             OF   TEXAS

                             September 23, 1988




    Mr. Vernon M. Arrell            Opinion No.     JM-955
    Commissioner
    Texas Rehabilitation           Re:   Application    of section
       Commission                  111.025 of the Human Resources
    118 E. Riverside Drive         Code, regarding certain limita-
    Austin, Texas    78704         tions on the purchase of ser-
                                   vices by the Texas Rehabilita-
                                   tion Commission    (RQ-1299)

    Dear Mr. Arrell:

          On behalf of the Texas Rehabilitation Commission, YOU
    ask four questions concerning  the authority of the commis-
    sioner to make certain factual determinations      and take
    action pursuant to section 111.025 of the Human Resources
    Code. Section 111.025 provides   the following in pertinent
    part:

                (a) An officer, employee, or paid consul-
            tant of an organization that receives     funds
            from the commission in payment for the pro-
            vision of rehabilitation servi,ces may not be
            a member'or employee of the board, nor may a
            person who cohabits with or is the spouse of
            an officer, managerial     employee,  or ,paid
            consultant of such an association be a member
            of the board or an .   employee of the board
            grade.17 or over, including exempt employees,
            according  to the position      classification
            schedule: under 'the General Appropriations
            Act.

         You inform us of the commission's    view that section
    111.025 does not apply to organizations that do not fit the
    definition of "rehabilitation facility" provided in section
    7(10) of the federal Rehabilitation  Act of 1973, 29 U.S.C.
    section 706(13), or to organizations that do not provide
    rehabilitation services as their primary task. You contend
    that the legislative  intent behind section  111.025 was to
    place the commission  at arm's length with those organiza;
    tions with which  it conducts business.   You conclude  that
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Mr. Vernon M. Arrell - Page 2     (JM-955)




the section should apply only to rehabilitation      facilities
"created or continued" by the commission.1

     In support of your argument, you describe two situa-
tions in which a literal application of section 111.025 will
yield, in your opinion, adverse and unintended results.  The
first involves state colleges and universities:

        [T]he Commission purchases educational       ser-
        vices   from . . . State colleges      [and uni-
        versities].    The    application   of    Section
        111.025 to State universities      and colleges
        from whom the Commission      purchases    educa-
        tional, rather than rehabilitation,      services
        is an example       of an unintended       result
        which would come from such an interpreta-
        tion . . . . The Commission      had no hand   in
        establishing or continuing State universities
        and colleges,    except by the very         small
        payments of fees and tuition       for disabled
        students, and such institutions do not have a
        primary purpose    of rehabilitating    the dis-
        abled. Therefore,     Section   111.025 clearly
        should not be applied to such institutions.

     The second situation   involves a contract between   the
commission and the Guadalupe Economic Services    Corporation
(hereinafter the corporation).   You advise us that the cor-
poration is not organized primarily for the rehabilitation
of the disabled.  Under the contract, the corporation agrees
to provide certain services designed to identify and assist
disabled migrant and seasonal farmworkers in El Paso County
and other handicapped persons who need assistance in obtain-
ing competitive employment.   The corporation also agrees to
conduct an assessment of the feasibility of providing   simi-
lar services in neighboring   counties. The corporation   de-
rives less than five percent of its total revenues from the
commission under this contract. The deputy director of the
corporation is the spouse of a managerial employee of the



     1. You do not explain how a rehabilitation facility is
"created" or %ontinuedn by the commission.   Your office has
informed us that these words simply refer to facilities   or
programs that receive funds from the commission for rehabi-
litation services, either by grant or through contract -- in
other words, facilities established for the primary  purpose
of providing rehabilitation services.




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        Mr. Vernon M. Arrell - Page 3     (JM-955)



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        Texas Rehabilitation Commission who serves in a salary grade
        above grade 17. You argue that because the corporation    is
        not a "rehabilitation facility,l' section 111.025 should not
        apply.
               On the basis of these    facts, you request our    opinion
        on   the following issues:

                    1. Whether the Commissioner of the Texas
                 Rehabilitation  Commission  may find as      a
                 matter of fact that certain organizations,
                 such as State universities and colleges,  and
                 the [Guadalupe Economic Services Corporation]
                 are not organizations from which the Commis-
                 sion purchases  rehabilitation  services  and
                 that Section 111.025 [of the Human Resources
                 Code] therefore does not apply.

                     2. Whether the Commissioner of the Texas
                 Rehabilitation Commission may find as a mat-
                 ter of fact that rehabilitation     facilities
                 created   or continued    by the    Commission
                 are    organizations   governed  by    Section
                 111.025 . . . .

                    3. Whether the Commissioner of the Texas
                 Rehabilitation  Commission,  upon finding a
                 violation of Section 111.025, may take action
                 since Section 111.025 has neither a self-exe-
                 cuting feature nor any penalty attached.

                    4. Assuming the Commissioner of the Texas
                 Rehabilitation Commission 'may take action,
                 what is an appropriate remedy for a violation
                 of Section 111.025?

             Insofar as these issues are predicated upon the board's
        interpretation of section 111.025, we should first consider
        whether that interpretation is correct. We. will begin with a
        review of the history of section 111.025.

             Section 111.025 was enacted    in 1985 as part of the
        nsunsetn review of the Texas Rehabilitation      Commission.
        Acts 1985, 69th Leg., ch. 603, at 2271. It was amended     in
        1987.to conform to the enactment of the Government      Code.
        Acts 1987, 70th Leg., ch. 167, f 2.19(19), at 1347. Section
        111.025 is substantially   the same in language and form as
        thirteen other enactments    of the 69th Legislature.     See
        Agric. Code 5 201.0141   (State Soil and Water #Conservation
    P
        Board); Educ. Code 8 66.62 (Board for Lease of University




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Mr. Vernon M. Arrell - Page 4     (JM-955)




Lands): Hum. Res. Code 55 81.002 (Texas Commission for the
Deaf), 91.011    (Texas Commission   for the Blind),    101.0031
(Texas Board on Aging): Nat. Res. Code 55 32.0123        (School
Land Board),    34.0133    (Boards for Lease of State-owned
Lands), 161.023 (Veterans' band Board); Parks & Wild.       Code
§ 11.0122 (Parks & Wildlife Commission); Water Code 0s 5.059
(Texas Water   Commission),    6.057 (Texas Water    Development
Board); V.T.C.S. arts. 4477-5, 5 2.023       (Texas Air Control
Board), 5561c-2, 5 108 (Texas Commission on Drug and Alcohol
Abuse) . These provisions are directed at averting potential
conflicts of interest among members and employees of the
boards or commissions created by each of the enumerated
statutes.   There are, however,    other provisions that serve
similar purposes.     See,     u    Hum. Res. Code 5 111.013
(qualifications for appoin%erZ      to board of Rehabilitation
Commission); V.T.C.S.    art. 6252-933, § 1 (forbidding state
officers and employees from holding any interest,      financial
or otherwise, that is in substantial conflict with discharge
of their duties).

     Though virtually identical to the other 1985 enactments
in form and, language, section 111.025 is broader in scope
than most of the provisions cited above. Comuare,          a
Agric.   Code 5 201.0141(b),    (c) (prohibiting   from Eoard
membership or employment   officers, employees,   etc., of 'Ia
statewide association   whose primary purpose    is soil and
water conservation~@); Hum. Res. Code 55 81.002(d) (*Ianasso-
ciation representing the interests of deaf or hearing-im-
paired persons), 91.011(b) ("an association that has as its
primary interest the provision     of services to, or other
matters relating to, the blind").     In contrast    to those
provisions, section 111.025 reaches all persons     associated
with organizations that receive funds from the commission
"in payment for the provision of rehabilitation     services."
To ascertain the proper meaning of section 111.025, then, we
must also learn the meaning of the term "rehabilitation
services."

     Section 111.002 of the     Human Resources   Code    defines
"rehabilitation services":

           (5) 'Rehabilitation   services'
       eouloment. suoolies. aoods. or serv !EF    n2
       essarv to enable a handicaooed individual     t0
       g                                       achieve
       naxmm    Ders nal S          c . To enable
       handicapped kdividual   to engage in a gainfu:
       occupation or achieve maximum personal    inde-
       pendenee   the commission   may engage   in or




                                P. 4839
Mr. Vernon M. Arrell - Page 5       (JM-955)




       contract for   activities,     including    but   not
       limited to:

             (A) evaluation of rehabilitation poten-
          tial, including diagnostic    and   related
          services incidental to the determination of
          eligibility for services and the nature and
          scope of services to be provided:

             (B)   counseling and guidance;

             (C) physical   and mental    restoration
          services necessary to correct or substan-
          tially modify a physical or mental   condi-
          tion that is stable or slowly progressive;

             (D)   training;

             (E) maintenance covering a handicapped
          individual's  basic living expenses,    in-
          cluding food, shelter, clothing, and other
          subsistence expenses necessary to support
          and derive the full benefit of the other
          rehabilitation services being provided:

             (F)   transportation:

             (G)   placement in a suitable employment:

             (H) postemployment   services        necessary
          to maintain suitable employment:

             (I) obtaining   occupational     licenses,
         including any license, permit, or other
         written  authority   required by a state,
         city, or other governmental      unit to be
         obtained in order to enter an occupation or
         small business,     and    providing    tools,
         equipment,  initial     stocks, goods,     and
         supplies: and

             (J) pzftng       other equipment,     sup-
         plies,            or goods that can
         ably be expected to benefit a handrzz;Eid
         individual in terms of employment        in a
         gainful   occupation         achievement    of
         maximum personal    inde;indence.    (Emphasis
         added.)




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Mr. Vernon M. Arrell - Page 6     (JM-955)




     The definition   of rehabilitation   services  is broad
enough to encompass virtually all goods and services   avail-
able to the commission    to help a handicapped    individual
obtain gainful employment and improve his quality of life,
including the services of state colleges and universities
and the Guadalupe   Economic Services Corporation.   In con-
trast, the definition of "rehabilitation facility" contained
in the Rehabilitation Act of 1973 places emphasis on facili-
ties "operated for the primary purpose of providing     voca-
tional rehabilitation   services to individuals with handi-
caps." 29 U.S.C.    g 706(13). You,do not suggest that the
application of the f;t&r$pfinition     is necessary to,comply
with any agreement             federal government  or is re-
quired as a condition for the acceptance of federal    funds,
and we detect no legislative intention to incorporate     the
federal definition into section 111.025. We must therefore
conclude that the board's narrow reading of section   111.025
is contrary  to the clear language of that section        and
section 111.002(5).

     With this understanding of section 111.025, we can now
directly address the first three issues concerning        the
authority of the commissioner    to enforce that provision.
The commissioner   of. the Texas Rehabilitation    Commission
serves as the chief administrative officer of the agency.
Hum. Res. Code 5 111.017. He administers chapter 111 of the
Human Resources  Code pursuant to policies    adopted by the
board of the commission.   Id. He is given authority to make
regulations necessary to carry out the purposes of chapter
111, subject to board approval. Id. 5 111.018(a).      He is
also authorized  to take whatever    action is necessary   or
appropriate to accomplish the objectives of the chapter.
Id. § 111.023. These provisions confer broad authority upon
the commissioner to administer and enforce chapter 111.    We
believe they carry with them the implied authority to make
the factual determinations    necessary  to enforce   section
111.025 and to take action in the event a breach of section
111.025 is discovered.    See Bullock v. Calvert, 480 S.W.2d
367   (Tex. 1972).    However, these broad statements      of
authority do not grant the commissioner tinlimited latitude
in managing the affairs of the commission.

     The language of section  111.025 curtails the discre-
tion of the commissioner by providing a clear standard   for
establishing whether   or to what extent a person     is in-
eligible for employment    by or membership  on the board.
officers, employees, and paid consultants of organizations
that receive funds from the commission "in payment for the
provision of rehabilitation services" as defined by section
111.002(5)  are    ineligible  for   board   membership   or




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Mr. Vernon M. Arrell - Page 7     (JM-955)




employment.  Their spouses or cohabitants are ineligible for
board membership or employment at or above salary grade  17.
While we recognize that there may be harsh consequences,  we
must presume the legislature had a definite purpose in mind
when it chose this broad standard of eligibility for member-
ship on the board or employment     by the board. Unless   a
statute is ambiguous, we are compelled to follow its clear
language. ReoublicBank Dallas, N.A. v. Interkal, Inc., 691
S.W.Zd 605 (Tex. 1985). Neither this office nor the commis-
sioner may ignore or alter the standard of eligibility
simply because   it yields unwanted   results. See State v.
MillSaD, 605 S.W.2d 366 (Tex. Civ. App. - Beaumont 1980, no
writ) (concluding that it is improper to add or to subtract
from an unambiguous statute).

     Accordingly, we conclude that the commissioner of the
Texas Rehabilitation Commission  has the authority to make
the factual determinations   necessary  to enforce   section
111.025 of the Human Resources Code, but such determinations
must be made pursuant   to the standards provided   in that
section. The commissioner may not enforce a standard       at
variance with section  111.025. The commissioner may take
action necessary to remedy a violation of section 111.025.

     Your fourth inquiry concerns the appropriate remedy for
a violation of section 111.025. The Human Resources      Code
places primary responsibility  for establishing   operational
policies in the board of the commission, 5ee Hum. Res. Code
5 111.017, and    authorizes   the commissioner     to   make
regulations governing personnel standards with the approval
of the board. &    5 111.018(a). We think these provisions
authorize  the board and the commissioner       to implement
policies and rules necessary   to enforce section    111.025.
Once again, though, the board and the commissioner must be
guided by the language of that section.

     You observe that section 111.025 provides no remedy for
a violation  of the section. Other statutes with similar
eligibility   limitations  provide that b.oard members     who
violate the prohibitions are subject to removal and that
employees who violate them are subject to.dismissal.      See.
ur     V.T.C.S.   art. 8407a, 0 29B(c); Attorney      General
Opinion JM-719    (1987).   Section   111.0131 of the Human
Resources Code authorizes the removal of a board member who
violates  section   111.025, but no section requires       the
dismissal of an employee who violates        section 111.025.
Clearly, an officer, employee,    or paid consultant    of an
organization   supplying  rehabilitation    services to    the
commission in exchange for commission funds is not eligible
for employment   by the board at any salary grade.       Their




                                P. 4842
Mr.   Vernon M. Arrell - Page 0      (JM-955)




spouses or cohabitants   who are employed by the board need
not necessarily   be dismissed.   However, the relationships
between board     employees  and   persons associated     with
organizations that supply rehabilitation services to the
commission   may,  in   certain circumstances,   affect    the
independence of judgment of the employee     and subject   the
employee to discipline under article 62521933. Whether       a
board employee who is the spouse or cohabitant          of an
officer, employee, or paid consultant of such an organiza-
tion is subject to discipline    under article  6252-9b is a
question of fact that must first be determined at the agency
level.

                           SUMMARY

               The commissioner of the Texas Rehabili-
          tation Commission   may   make the    factual
          determinations necessary  to enforce  section
          111.025 of the Human Resources Code, but such
          determinations must be made.pursuant to the
          standards provided in that section. The com-
          missioner may not enforce a standard at vari-
          ance with section 111.025. The commissioner
          may take action necessary to remedy a viola-
          tion of section 111.025.

               A board member who violates        section
          111.025 is subject to removal. Hum. Res. Code
          5 111.0131(a)(3).    Officers,   employees,   or
          paid consultants    of an organization      that
          receives funds from the commission for the
          provision   of   rehabilitation   services    as
          defined in section 111.002(S) of the Human
          Resources Code are ineligible for appointment
          to or employment by the board of the Rehabil-
          itation Commission.   Spouses and cohabitants
          of such persons may not be members of the
          board or employees of the board at or above
          salary grade 17, according     to the position
          classification   schedule under the General
          Appropriations Act.




                                     -JIM      MATTOX
                                       Attorney General of Texas   ^.




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     Mr.   Vernon M. Arrerl - Page 9    (JM-955)




     MARY KELLER
     First Assistant Attorney General

     mu MCCREARY
     Executive Assistant Attorney General

     JUDGE ZOLLIE STEAXLEY
     Special Assistant Attorney General

     RICK GILPIN
     Chairman, Opinion Committee

     Prepared by Steve Aragon
     Assistant Attorney General




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