                              ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                             August 15,2006



Mr. Albert Hawkins                                        Opinion No. GA-0447
Executive Commissioner
Texas Health and Human Services Commission               Re: Whether the Office for the Prevention of
Post Office Box 13247                                    Developmental Disabilities is an autonomous
Austin, Texas 78711                                      state agency or whether it is subject to
                                                         oversight and control by the Health and Human
                                                         Services Commission     (RQ-0434-GA)

Dear Commissioner      Hawkins:

        You request an opinion regarding the Office for the Prevention of Developmental Disabilities
(the “Office”) established under subchapter C, chapter 112 of the Human Resources Code (the
“Act”).’ See TEX. HUM. RES. CODE ANN. $5 112.041-.051 (Vernon 2001). Specifically, you ask:

                 1.    Is [the Office] an autonomous state agency, or is it, by contrast,
                       subject to [the Health and Human Services Commission’s]
                       fiscal oversight and control?

                2.     Is [the Office] authorized to solicit funds such as private grant
                       money?

                 3.    Assuming that [the Office] does have authority to solicit funds
                       as described above, then, pursuant to Tex. Const. art. XVI, $
                       6(b) and according to its organic statute, but in the absence of
                       specific legislative appropriation, is [the Office] authorized to
                       spend funds received through grants and donations received
                       from public, private, state, and federal sources?

Request Letter, supra note 1, at 1.




         ‘See Letter from Albert Hawkins, Executive Commissioner, Texas Health and Human Services Commission,
to Honorable Greg Abbott, Attorney General of Texas (Jan. 20, 2006) (on file with the Opinion Committee, also
available at www.oag.state.tx.us) [hereinafter Request Letter].
Mr. Albert Hawkins       - Page 2                    (GA-0447)




I0      Background

          In 1989, the legislature created the Office to “minimize the economic and human losses in
Texas caused by preventable disabilities through the establishment of a joint private-public
initiative.” Act ofMay 28,1989,71st Leg., R.S., ch. 1209, $ I,1989 Tex. Gen. Laws 4912,4912;
TEX. HUM. REB. CODE ANN. § 112.041 (Vernon 2001). In 1999, the legislature administratively
attached the Office to the Texas Department of Mental Health and Mental Retardation (the
“Department”). See Act of May 22,1999,76th Leg., R.S., ch. 75 1, $ 1,1999 Tex. Gen. Laws 3359,
3360; TEX. Hw. RES. CODE ANN. 5 112.043(a) (Vernon 2001). The legislature directed the
Department to

                 (1) provide administrative       assistance, services, and materials to the
                 office;

                 (2) accept, deposit, and disburse money made available to the office;

                 (3) accept gifts and grants on behalf of the office from any public or
                 private entity;

                 (4) pay the salaries and benefits of the executive director and staff
                 of the office;

                 (5) reimburse the travel expenses and other actual and necessary
                 expenses of the executive committee, executive director, and staff of
                 the office incurred in the performance of a function of the office, as
                 provided by the General Appropriations Act;

                 (6) apply for and receive on behalf of the office any appropriations,
                 gifts, or other money from the state or federal government or any
                 other public or private entity, subject to limitations and conditions
                 prescribed by legislative appropriation;

                 (7) provide the office with adequate             computer     equipment     and
                 support; and

                 (8) provide the office with adequate office space and permit the
                 executive committee to meet in facilities of the department.

TEX. HUM. RES. CODE ANN. 5 112.043(b) (V ernon 2001).             The legislature also provided that
the executive director and staff are employees of the Office and not the Department.           See id.
5 112.043(c). Additionally, the legislature appropriated to the Department in 1999,2001, and 2003
funds to pay for salaries, benefits, travel expenses, and other items for the Office’s support2


         2See General Appropriations Act, 76th Leg., R.S., ch. 1589, art II-8 1, 1999 Tex. Gen. Laws 5446, 5640
($120,000); General Appropriations Act, 77th Leg., R.S., ch. 15 15, art. 11-97, 2001 Tex. Gen. Laws 5411, 5618
                                                                                                    (continued.. .)
    Mr. Albert Hawkins     - Page 3                   (GA-0447)




             In 2003, without amending the Act, the legislature effectively transferred the Department’s
    administrative support duties to the Health and Human Services Commission (the “Commission”).
    The legislature abolished several health services agencies, including the Department, see Act of June
    2, 2003, 78th Leg., R.S., ch. 198, 5 1.26, 2003 Tex. Gen. Laws 611, 641, and transferred the
    abolished agencies’ activities, duties, and powers related to administrative support services,
    including accounting and financial management, to the Commission. See id. 5 1.1 S(a)(l), at 635.
    And the legislature provided that a reference in the law to an abolished agency or its governing body
    relating to the transferred powers and activities meant the Commission. See id 5 1.18(d), at 636.
    The legislature also included in the 2005 General Appropriations Act a rider directing the
    Commission to “expend, from funds otherwise appropriated to the [Clommission by this Act, an
    amount not to exceed $100,320 each fiscal year for salaries, benefits, travel expenses, and other
    support of’ the Office. See General Appropriations Act, 79th Leg., R.S., ch. 1369, art. I&84,2005
    Tex. Gen. Laws 4324,4509.

    II 0    Analysis

            1.    Fiscal control and oversight

             You first ask whether the Office is an autonomous state agency or whether it is subject to the
    Commission’s fiscal oversight and control. Request Letter, supra note 1, at 1. You suggest that the
    legislature intended the Commission to provide support and funds to the Office, but that the
    legislature did not intend the Commission to control and oversee the Office. See id. at 3-5. We
I
    understand your concern to be with the fiscal independence of the Office rather than with its status
    as a state agency.

             The Office or its executive committee may take all action necessary to carry out the purposes
    of the Act. The Office’s executive committee may take any action approved by a majority of its
    members. See TEX. HUM. RES. CODE ANN. $ 112.045(f) (V ernon 2001). It may establish policies
    and procedures to implement the Act. See id 5 112.045(g). Among other powers, the Office may
    “solicit, receive, and spend grants and donations from public, private, state, and federal sources.”
    Id. § 112.044(5). The executive committee may also establish task forces, which are directed to
    prepare budget plans for particular prevention programs and arrange for funds, and apply for and
    distribute grants from public and private sources. See id $5 112.048(c), .050(a). It may hire an
    executive director who in turn may hire additional staff. See id $ 112.047(a), (c). The executive
    director and staff are employees of the Office. See id § 112.043(c). Based on the plain language
    of the Act, neither the Office’s nor the executive committee’s authority to carry out prevention
    programs, obtain and expend funds, adopt policies and procedures, and hire employees is subject to
    the Commission’s control or oversight. See Tex. Dep ‘t of Tramp. v. City of Sunset Valley, 146
    S.W.3d 637, 642 (Tex. 2004) (“If the statutory language is unambiguous, we must interpret it
    according to its terms, giving meaning to the language consistent with other provisions in the
    statute .“).


             2(...continued)
    ($120,000); General Appropriations Act, 78th Leg., R.S., ch. 1330, art. 11-93, 2003 Tex. Gen. Laws 5023, 5222
    ($105,600); see also Request Letter, supra note 1, at 4.
                                                                                                   ,
Mr. Albert Hawkins        - Page 4                      (GA-0447)




         Additionally, neither section 112.043 nor another provision in the Act authorizes the
Commission to exercise fiscal control or oversight over the Office. See generally TEX.HUM. RES.
CODE ANN. $5 112.041-.051 (Vernon 2001); City of Sunset Valley, 146 S.W.3d at 642. The Act
directs the Commission to provide and pay for administrative support services.3 See TEX.HUM. RES.
CODE ANN. $112.043 (Vernon 200 1); see also HOUSECOMM.ON PUBLICHEALTH,BILLANALYSIS,
Tex. ‘H.B. 115 1,76th Leg., R.S. (1999) (“This bill also provides that [the Office] is administratively
attached to [the Department], and requires [the Department] to perform certain administrative
tasks.“). Under section 112.043, the Commission must generally (1) provide administrative support
services, facilities, and equipment; and (2) apply for and accept grants, gifts, and other funds on
behalf of the Office. See TEX.HUM. RES. CODE ANN. $112.043(b) (Vernon 2001). Consistent with
this statutory role, the Commission -like its predecessor, the Department-is        appropriated funds
to provide the necessary support services. See General Appropriations Act, 79th Leg., R.S., ch.
 1369, art. II-84,2005 Tex. Gen. Laws 4324,4509.        Thus, while the Office is funded in part with
moneys legislatively appropriated to the Commission, because the funds are specifically designated
for the support of the Office, the administrative agency has limited control over those funds. See id

       Based on a plain reading of the Act as a whole, we conclude that the Office is not subject
to the Commission’s     fiscal control and oversight. See TEX. HUM. RES. CODE ANN. $5
112.041-.05l(Vemon    2001); see also City of Sunset Valley, 146 S.W.3d at 642.

         20     Soliciting private grants

       You next ask whether the Office is authorized to solicit funds such as private grant moneys.
Request Letter, supra note 1, at 1. You explain that the Commission’s directives to accept, deposit,
and disburse gifts and grants “create some overlap with the pre-existing fundraising functions vested
in the [Office]” and “[tlhere is . . . some potential for confusion.” Id. at 3.

         The Office is expressly authorized to solicit private and public grants and donations. See
TEX.HUM. RES. CODE ANN. $5 112.044(5), .046(b), .048(c)(3), .050(a) (Vernon 2001). It may
“solicit, receive, and spend grants and donations from public, private, state, and federal sources.”
Id. $ 112.044(5). Additionally, the Office’s board of advisors serving on tasks forces may “solicit
donations and grants.” Id. 5 112.046(b). The Office-established task forces may “arrange for funds”
through “grants and gifts from private persons and consumer and advocacy organizations” and
“foundation support.” Id. 5 112,048(c)(3). Finally, the executive committee “may apply for and
distribute private, state, and federal funds to implement prevention policies set by the executive
committee.” Id 5 112.050(a).

        The Commission’s later enacted authority to solicit private or public grants on behalf of the
Office and accept and disburse funds for the Office did not amend or repeal the Office’s authority.
See Act of May 28,1989,71st Leg., R.S., ch. 1209, 5 1,1989 Tex. Gen. Laws 4912,4912; Act of
May 22, 1999, 76th Leg., R.S., ch. 751, 5 1, 1999 Tex. Gen. Laws 3359, 3360; TEX.HUM.RES.



         3A reference to the Department in the law relating to transferred administrative support services is a reference
to the Commission. See Act of June 2,2003,78th      Leg., R.S., ch. 198, § 1,18(d), 2003 Tex. Gen. Laws 611, 641.
Mr. A.lbert Hawkins     - Page 5                (GA-0447)




CODE ANN. § 112.043(a) (Vernon 2001). The later enacted provision          did not expressly amend or
repeal the Office’s authority to solicit funds. Thus, “[i]f repeal was effected it was by implication
only, and repeal by implication is not favored.” Standard v. Sadler, 383 S.W.2d 391, 395 (Tex.
1964). In the absence of an express repeal, an old and a new statute that are not positively repugnant
will be construed as to give effect to both. Id. Section 112.043 authorizes the Commission to
“accept, deposit, and disburse money made available to the [Office] .” TEX. HUM. RES.CODEANN.
tj 112.043(b)(2) (V emon 200 1) (emphasis added). It also authorizes the Commission to “accept gifts
and grants on behalf of the [Office] from any public or private entity.” Id 5 112.043(b)(3) (emphasis
added). There is no conflict or “positive repugnance” between sections 112.044(5), 112.046(b),
112.048(c)(3), and 112.050(a) on the one hand, and section 112.043 on the other. Compare id.
$5 112.044(5), .046(b), .048(c)(3), .050(a) (V emon 2001), with id. 5 112.043(b)(2), (3).

        In answer to your second question, we conclude that the Office is authorized to solicit funds
such as private grant moneys. See id. $5 112.044(5), .046(b), .048(c)(3), .050(a).

        3   l   Spending funds without specific legislative appropriation

        Finally, you ask whether the Office is authorized by article XVI, section 6(b) of the Texas
Constitution to spend public and private grants and donations without specific legislative
appropriation. See Request Letter, supra note 1, at 1.

         Generally, with certain exceptions not relevant here, gifts, grants, donations, and other funds
collected or received by a state agency under law must be deposited in the state treasury. See TEX.
GOV’T CODEANN. $404.093 (Vernon 2005) (application and exceptions); id. $404.094(a) (funds,
including grants and donations “collected or received by a state agency under law shall be deposited
in the treasury”).     Funds in the state treasury may not be expended without a legislative
appropriation. See TEX. CONST.art. VIII, 5 6 (“No money shall be drawn from the Treasury but in
pursuance of specific appropriations made by law . . . .“).

        Article XVI, section 6(b) of the Texas Constitution, however, permits state agencies
responsible for providing services to physically or mentally disabled persons to spend federal and
private grant moneys without legislative appropriation. Section 6(b) provides that:

                 (b) State agencies charged with the responsibility of providing
                 services to those who are blind, crippled, or otherwise physically or
                 mentally handicapped may accept money from private or federal
                 sources, designated by the private or federal source as money to be
                 used in and establishing and equipping facilities for assisting those
                 who are blind, crippled, or otherwise physically or mentally
                 handicapped in becoming gainfully employed, in rehabilitating and
                 restoring the handicapped, and in providing other services
                 determined by the state agency to be essentialfor the better care and
                 treatment of the handicapped. Money accepted under this subsection
                 is state money. . . . The money may not be expended for any purpose
Mr. Albert Hawkins     - Page 6                 (GA-0447)




                other than the purpose for which it was given. Notwithstanding any
                other provision of this Constitution, the state agencies may expend
                money accepted under this subsection without the necessity of an
                appropriation, unless the Legislature, by law, requires that the money
                be expended only on appropriation. . . .

TEX.CONST.art. XVI, 5 6(b) (emphasis added).

         But article XVI, section 6(b)? application is limited.          When interpreting the state
constitution, we must look at its literal text and give effect to its plain language. See Stringer v.
Cendant Mortgage Corp., 23 S.W.3d 353,355 (Tex. 2000); Republican Party of Tex. v. Dietz, 940
S. W.2d 86,89 (Tex. 1997). We must “strive to give constitutional provisions the effect their makers
and adopters intended.” Stringer, 23 S.W.3d at 355; see also City ofE1 Paso v. El Paso Cmty. Coil.
Dist., 729 S.W.2d 296,298 (Tex. 1986). And we must strive to avoid a construction that renders
any provision meaningless or inoperative. See Stringer, 23 S.W.3d at 355; Hanson v. Jordan, 198
S. W.2d 262,263 (Tex. 1946). By its literal terms, section 6(b) applies to state agencies responsible
for providing services to physically and mentally disabled persons; and to federal and private funds
received by these agencies that are used “in and establishing and equipping facilities” for assisting
physically and mentally disabled persons and providing other essential services. See TEX.CONST.
art. XVI, 5 6(b); see also 2 GEORGED. BRADENet al., THE CONSTITUTIONOFTHE STATEOFTEXAS:
AN ANNOTATEDAND COMPARATIVEANALYSIS 726 (1977) (“Subsection (b) was added to comply
with the requirements of the federal Vocational Rehabilitation Act of 1964. That act made federal
funds available to match private contributions but required depositing the funds with the state’s
vocational rehabilitation agency.“).

         The Office is responsible for coordinating efforts to prevent developmental disabilities rather
than providing services to disabled persons. See TEX.HUM. RES. CODE ANN. $5 112.041, .044
(Vernon 2001). The Office’s statutory purpose is to “minimize the economic and human losses in
Texas caused by preventable disabilities.” Id 5 112.041 (a). And its duties relate to coordinating
preventive activities: providing information about the preventability of developmental disabilities;
coordinating    and promoting prevention activities of state and local agencies and private
organizations; and monitoring and assessing prevention programs. See id. 5 112.044; see also
SENATECOMM. ON PUBLICHEALTH,BILLANALYSIS,Tex. S.B. 1527,71 st Leg., R.S. (1989) (“The
steering committee recommended [that] the . . . Legislature establish an Office for the Prevention
of Developmental Disabilities to facilitate the development, coordination, and delivery of targeted
prevention programs.“); SXJNSET     ADVISORYCOMMISSION,STAFFREPORT,TEXAS OFFICEFORTHE
PREVENTIONOF DEVELOPMENTALDISABILITIESat 156 (Sept. 1998) (“Unlike other disabilities
agencies, such as the Texas Rehabilitation Commission and the [the Department], which provide
services to people with disabilities, [the Office’s] mission is more closely tied to public health,
specifically injury and disability prevention.“).

        Because the Office does not provide services to physically or mentally disabled persons, we
conclude that it is not authorized by article XVI, section 6(b) of the Texas Constitution to spend
private and public grants and donations without specific legislative appropriation. See TEX.CONST.
art. XVI, $ 6(b); TEX.HUM. RES. CODE ANN. $5 112.041, .044 (Vernon 2001).
    Mr. Albert Hawkins   - Page 7                (GA-0447)




                                           SUMMARY

                             The Office for the Prevention of Developmental Disabilities
                   is not subject to the fiscal control and oversight of the Health and
                   Human Services Commission. The Office is expressly authorized to
                   solicit funds such as private grant funds. Because the Office does not
                   provide services to physically or mentally disabled persons, it is not
                   authorized by article XVI, section 6(b) of the Texas Constitution to
                   spend private and public grants and donations without specific
                   legislative appropriation.




    KENT C. SULLIVAN
    First Assistant Attorney General
I


    ELLEN L. WITT
    Deputy Attorney General for Legal Counsel

    NANCY S. FULLER
    Chair, Opinion Committee

    Sheela Rai
    Assistant Attorney General, Opinion Committee
