                                              December 29, 1999



Mr. Vernon M. Arrell                                       OpinionNo.       JC-0161
Commissioner
Texas Rehabilitation Commission                            Re: Whether the Texas Council for Develop-
4900 North Lamar Boulevard                                 mental Disabilities may engage in lobbying
Austin, Texas 78751-2399                                   activities (RQ-OOSS-JC)


Dear Mr. Arrell:

          You ask whether the Texas Council for Developmental Disabilities may engage in lobbying
activities after an organization subordinate to it, the Traumatic Brain Injury Advisory Board, begins
to receive funds appropriated by the legislature.’ We conclude that for purposes of the lobbying
restrictions in the General Appropriations Act and chapter 556 of the Government Code, the Texas
Council for Developmental Disabilities is a state agency that uses both federal and state funds, and
that it may not use funds from either source to attempt to influence the passage or defeat of a
legislative measure.

         The General Appropriations Act for the current biennium provides that “[tlhe moneys
appropriated by this Act, regardless of source or character, may not be expended except in
compliance with Chapter 556, Government Code.” Act ofMay 28,1999,76th Leg., R.S., ch. 1589,
art. IX, $9-4.05,1999 Tex. Sess. Law Serv. 5447,6269 [hereinafter “General Appropriations Act”].
Chapter 556 of the Government Code prohibits a state agency from using appropriated money to
lobby for or against legislation:

                       (a) A state agency may not use appropriated money to attempt to
                  influence the passage or defeat of a legislative measure.

                       (b) This section does not prohibit a state officer or employee from
                  using state resources to provide public information or to provide
                  information responsive to a request.




          ‘Tbe Texas Council for Developmental Disabilities has repealed Council rules relating to the Traumatic Brain
Injuy Advisory Board “because funding for the Traumatic Brain Injury Board has expired and operations of the Board
have ceased.” 24 Tex. Reg. 10900, 10901 (Dec. 3, 1999). Nevertheless, because the status of the Board’s existence
is uncertain, we answer your question as if the Board is still in operation.
Mr. Vernon M. Arrell - Page 2                    (X-0161)




TEX. GOV’T CODE ANN. 5 556.006 (Vernon Supp. 2000). If the Texas Council for Developmental
Disabilities is a state agency that uses appropriated money, regardless of source or character, it may
not use that money to influence the passage or defeat of a legislative measure.

         A “state agency” for purposes of chapter 556 includes “a department, commission, board,
office, or other agency in the executive branch of state government, created under the constitution
or a statute, with statewide authority.” Id. “Appropriated money” means “money appropriated by
the legislature through the General Appropriations Act or other law.” Id. We must determine
whether the Council is a “state agency” and whether it uses “appropriated money.”

          The Texas Council for Developmental Disabilities (“the Council”) was established by Texas
law for the purpose of receiving federal funds to assist individuals with developmental disabilities.
The federal Developmental        Disabilities Assistance and Bill of Rights Act of 1996, and its
predecessors, sets up a program for providing funds to states to assist individuals with developmental
disabilities. See 42 U.S.C. 5 6000 (1994). A state that wishes to receive federal funds must establish
a state developmental disabilities council. Id. $5 6022(c)(l), 6024(a). The mission of a state council
is “to promote, through systemic change, capacity building, and advocacy activities                  the
development of. . services, supports, and other assistance designed to achieve independence,
productivity, and integration and inclusion into the community for individuals with developmental
disabilities.” Id. 5 6021. In particular, a council is authorized to undertake such activities as
community outreach, training, public education, disabilities prevention, and a number of other
activities set out by the federal law. Id. 5 6024(c)(4)(A)-(K).       In Texas, the Texas Council for
Developmental Disabilities is the entity that has been established to implement the purposes of the
federal act. See TEX. HUM. RES. CODE ANN. 5 112.011 (Vernon 2000). State law confers powers
and duties upon the Council in addition to its responsibilities under federal law. Id. 5 122.020.

        The Traumatic Brain Injury Advisory Board (“TBI Advisory Board”) is another entity
created to take advantage of federal funds for the purpose of assisting persons with disabilities. The
federal Traumatic Brain Injury Act of 1996 authorizes the United States Department of Health and
Human Services to make grants to states for the purpose of improving access to health and other
services for victims of traumatic brain injury. See 42 U.S.C. 5 300d-52(a) (Supp. II 1994). To
receive a federal grant, a state must establish an advisory board within the state health department
or within another state agency as determined by the governor. Id. 5 300d-52(b)(l).       The advisory
board must, among other things, make recommendations to the state on ways to improve services
coordination regarding traumatic brain injury. Id. 5 300d-52(b)(2). Governor Bush appointed the
Council as the lead agency charged with coordinating the planning and development efforts of
the state advisory board with the goal of obtaining a federal grant. See Letter from Honorable
George W. Bush, Governor, State of Texas, to Ms. Jan Newsom, Chair, Texas Planning Council for
Developmental Disabilities (Feb. 6, 1997) (on file with Opinion Committee). After the grant was
awarded, the TBI Advisory Board was established in Texas to f&ill the purposes of the federal
law. See 22 Tex. Reg. 9187, 9188 (Sept. 12, 1997), repealed by 24 Tex. Reg. 10900, 10901
(Dec. 3, 1999).
Mr. Vernon M. Arrell - Page 3                   (X-0161)




          While the Council acts as the administrative supporter of the TBI Advisory Board, the
Council itself receives administrative support and fiscal management services from the Texas
Rehabilitation    Commission for its activities with respect to individuals with developmental
disabilities.   The federal Developmental Disabilities Assistance and Bill of Rights Act of 1996
requires a state that establishes a developmental disabilities council and receives federal funds under
the Act to designate a state agency “that shall, on behalf of the State, provide support to the
Council.” 42 U.S.C. § 6024(d)( 1) (1994). The Texas Rehabilitation Commission was appointed by
Governor Clements in 1983 to serve as what was then called the “administering agency” for the
Council.      See HOUSE RESEARCH ORG., BILL ANALYSIS, Tex. H.B. 1610, 76th Leg., R.S. 2
(Apr. 6, 1999). A 1994 amendment to the federal law allows a state to appoint a council itselfas the
designated state agency, see 42 U.S.C. $6024(d)(l) (1994), although Texas has chosen to have the
Rehabilitation Commission continue to serve that role. Among other duties, the designated agency
shall provide “support services” as requested by and negotiated with the Council, “receive, account
for, and disperse funds” received under the Act, and “provide for such fiscal control and fund
accounting procedures as may be necessary to assure the proper disbursement of, and accounting for,
funds paid to the State” under the Act. Id. 4 6024(d)(3); see TEX. HUM. RES. CODE ANN.
$9 112.001(2), ,018 (Vernon Supp. 2000).

         We conclude that the Texas Council for Developmental Disabilities is a state agency for
purposes of chapter 556 of the Government Code. A “state agency” for purposes of chapter 556
includes “a department, commission, board, office, or other agency in the executive branch of state
government, created under the constitution or a statute, with statewide authority.” TEX. GOV’TCODE
ANN. 5 556.001 (Vernon Supp. 2000). The Council was created by statute. See TEX. HUM. RES.
CODE ANN. 5 112.011 (Vernon Supp. 2000). Its members are appointed by the governor, id.
8 112.012, and they must be trained on the requirements of the state open meetings law, public
information law, administrative procedures law, conflict of interest law, and other laws relating to
public officials, id. 5 112.0163(b). The Council is subject to the Texas Sunset Act. Id. 5 112.023.
It has rulemaking authority, id. 5 112.020(b), and statewide authority to advocate on behalf of
persons with developmental disabilities and to perform other duties imposed by state and federal
law, id. 5 112.019. These factors have supported findings by courts and this office that an entity is
a state agency. See, e.g., American HomeAssurance v. Texas Dep ‘toflns., 907 S.W.2d 90,95 (Tex.
App.-Austin     1995, writ denied); Tex. Att’y Gen. Op. No. H-l 116 (1978) at 1.

         The Texas Ethics Commission determined in 1992 that the Council was not a “state agency”
for purposes of former article 6252-9b of the Texas Civil Practices and Remedies Code, now
codified in chapter 572 of the Government Code, which requires state officers to file personal
financial statements with the Ethics Commission. See Tex. Ethics Comm’n Op. No. 26 (1992); TEX.
C&VT CODE ANN. $5 572.002, .021 (Vernon 1994 & Supp. 1999). Chapter 572 defines “state
agency” to include “a department, commission, board, office, or other agency that .         is in the
executive branch of state government; has authority that is not limited to a geographical portion of
the state; and was created by the Texas Constitution or a statute of this state.” Id. 4 572.002(10)
(Vernon Supp. 2000). The ethics opinion reasons that because the definition requires an entity to
wield actual “authority,” an entity that does not wield actual authority is not a “state agency” for
Mr. Vernon M. Arrell - Page 4                   (X-0161)




purposes of the financial reporting requirement. Tex. Ethics Comm’n Op. No. 26 (1992). Chapter
556 ofthe Government Code, the current state agency lobbying prohibition, similarly defines a“state
agency” as an entity that has statewide “authority.” TEX. GOV’T CODE ANN. $556.001 (Vernon
Supp. 2000). The ethics opinion concludes that the Council is an advisory body and does not
exercise actual “authority” because the Council “does not provide services, does not distribute funds,
does not implement policy, and does not engage in adjudication.” Tex. Ethics Comm’n Op. No. 26
(1992).

          The authority of the Council has changed since the ethics opinion was issued in 1992.
Recent amendments       to state laws governing the Council have increased its authority and its
independence,     apart from administrative    support and fiscal management,     from the Texas
Rehabilitation Commission, bringing the Council’s duties in line with previous changes made to
federal law. See Sunset Advisory Comm’n Report, at 126 (Sept. 1998); HOUSE RESEARCHORG.,
BILL ANALYSIS, Tex. H.B. 1610, 76th Leg., R.S. 3 (Apr. 6, 1999). The role of the Rehabilitation
Commission was changed from one of “administering” the Council to one of providing “support”
to the Council. TEX. HUM. RES. CODE ANN. $5 112.001(2), .018(a) (Vernon Supp. 2000). While
the Commission receives and disburses Council funds, id. 5 112.018(b), the Commission no longer
makes the final decision regarding the award of grants, id. 5 112.018(c). The Council may now
adopt rules as necessary to implement its duties, approve and execute an annual budget for Council
activities, and contract with or provide grants to agencies, organizations, and individuals as
necessary to implement Council activities. Id. $ 112.020(b). In our view, these powers and duties
confer “authority” upon the Council and make it a “state agency” for purposes of chapter 556 ofthe
Government Code. Accordingly, the Council may not engage in lobbying if it uses “appropriated
money.”

         Chapter 556 defines appropriated money as “money appropriated by the legislature through
the General Appropriations Act or other law.” TEX. GOV’T CODE ANN. 5 556.001 (Vernon Supp.
2000). The General Appropriations Act prohibits the use for lobbying of appropriated monies
“regardless of source or character.” General Appropriations Act, supm, art. IX, 5 9-4.05, at 6269.
On their face, these definitions encompass both funds that originated in the state and fimds received
from the federal government for appropriation to state agencies. Federal funds received by the state
must be deposited in the state treasury, and may be withdrawn only by appropriation.        See TEX.
GOV’T CODEANN. 5 404.094 (Vernon 1998); TEX. CONST. art. VIII, 9 6; Tex. Att’y Gen. Op. Nos.
DM-288 (1994) at 2; JM-772 (1987) at 6-7. The General Appropriations Act appropriates federal
funds received from state agencies to such agencies for the purposes for which the funds were
granted. See General Appropriations Act, supra, art. IX, 4 9-8.02, at 6305. Thus, chapter 556
prohibits both federal funds and state funds appropriated by the legislature from being used for
lobbying activities. Cf: Tex. Att’y Gen. Op. No. MW-191 (1980) 1 (stating that federal funds
appropriated to Texas Prosecutors Coordinating Council through the general appropriations act were
 subject to riders limiting the use of appropriated funds).

      Although the Council receives no direct appropriations of state funds, see Sunset Advisory
Comm’n Report, at 126 (Sept. 1998), it uses federal funds, uses the resources of a state-funded
Mr. Vernon M. Arrell - Page 5                    (X-0161)




agency, and coordinates state funds used by another state entity. Federal funds received by the state
for the Council’s use are deposited in the state treasury and appropriated to the Texas Rehabilitation
Commission, which provides administrative support and fiscal management services to the Council.
See General Appropriations Act, supra, art. II, at 5652; TEX. HUM. REs. CODEANN. $5 112.001(2),
,018 (Vernon Supp. 2000). Federal law requires that there be state financial participation in Council
activities. See42 U.S.C. 5 6022(5)(B) (1994). Additionally, the current appropriations act allocates
$20,000 in state funds to the TBI Advisory Board, whose efforts, as we have said, are coordinated
by the Council. See General Appropriations Act, supra, art. II, at 5653. Thus, we conclude that the
Council uses both state and federal funds.

         Although we have concluded that federal funds that pass through the state’s general
appropriations act for use of the Council are “appropriated money” for purposes of chapter 556 of
the Government Code, we must nevertheless determine whether federal funds granted to the state
pursuant to the federal Developmental Disabilities Assistance and Bill of Rights Act fall within the
reach of state lobbying prohibitions.      As a general rule, if federal law requires that federal funds
granted to a state be used for a particular purpose, that requirement attaches to the funds in the state
treasury, and the legislature is bound by any such requirement in appropriating the funds. See Tex.
Att’y Gen. Op. No. DM-145 (1992) at 3. “There is of course no question that the Federal
Government, unless barred by some controlling constitutional prohibition, may impose the terms and
conditions upon which its money allotments to the States shall be disbursed, and that any state law
or regulation inconsistent with such federal terms and conditions is to that extent invalid.” King v.
Smith, 392 U.S. 309, 333 (1968). States are free to refuse grants of federal funds, but if the funds
are accepted, the state must comply with the conditions attached to their receipt. See Gieseking v.
Schafer, 672 F. Supp. 1249, 1255 (W.D. MO. 1987) (“As with other federal-state cooperative
programs, the [Developmental Disabilities] Act is voluntary, and states are given the choice of
complying with the conditions set forth in the Act or foregoing the benefits of federal funding.“);
Tex. Att’y Gen. Op. No. MW-395 (1981) at 4.

         But federal funds granted to a state are not necessarily f?ee from the application of all state
laws. Attorney General opinions have upheld the application of state laws to the use of federal funds
on the grounds that the funds become state funds when they are deposited in the state treasury and
appropriated by the legislature. See, e.g., Tex. Att’y Gen. Op. Nos. JM-118 (1983) at 2 (concluding
that teachers who worked under federally funded program were subject to constitutional prohibition
on dual compensation); MW-191 (1980) at 1 (concluding that federal funds appropriated to Texas
Prosecutors Coordinating Council through general appropriations act were subject to rider restricting
use of outside legal counsel). Another opinion upheld the application of state laws to federal funds
where federal law required that the funds be spent in accordance with state law. See Tex. Att’y Gen.
Op. No. DM-33 1(1995) at 2 (concluding that federal block grant funds distributed to city are subject
to state competitive bidding laws).

         The United States Supreme Court has said that when Congress acts pursuant to its spending
power, its legislation is like a contract. In return for federal funds, the states agree to comply with
federally imposed conditions. See Davis v. Monroe County Bd. of Educ., _ U.S. _,               119 s. ct.
Mr. Vernon M. Arrell - Page 6                     UC-0161)




1661,167O (1999). In interpreting language in spending legislation, the Court requires Congress to
“speak with a clear voice,” since there can be no knowing acceptance of the terms of a putative
contract if a state is unaware ofthe conditions imposed by federal law or is unable to ascertain what
is expected of it. Pennhurst State Sch. & Hosp. Y. Hulderman, 451 U.S. 1, 17 (1981). Thus, the
Court has said that if Congress intends to impose a condition on the grant of federal funds, thereby
tying the hands of the state legislature to some extent, it must do so unambiguously.    Id.

         While we have found no Texas court opinion that has directly addressed the issue of the
state’s authority to restrict the use of federal funds, Attorney General Opinion JM-772 applies a test
similar to the one used by the United States Supreme Court. Attorney General Opinion JM-772
concludes that the test for determining whether federal law controls a state’s use of funds is “whether
there is a clear manifestation of congressional intent to alter states’ traditional decision-making
processes.” Tex. Att’y Gen. Op. No. JM-772 (1987) at 12. Applying this test, the opinion concluded
that the principles of law governing the allocation and appropriation of state funds were applicable
to federal funds received by the state in a certain settlement of litigation. Id. at 13.

        We do not find that the federal law pursuant to which the Council receives federal funds
clearly manifests an intent that the funds be free of state lobbying restrictions or, for that matter, that
the funds be used for lobbying at all. Under the Developmental Disabilities Assistance and Bill of
Rights Act of 1996, state councils are directed to “serve as an advocate for individuals with
developmental    disabilities,” 42 U.S.C. 5 6024(c)(l), and assist disabled individuals through
“systemic change, capacity building, and advocacy activities.” Id. 4 6021. The federal statute lists
a number of activities in which a council may engage in furtherance of its mission.                     See
id. § 6024(c)(4)(A)-(K).       These activities include outreach, training, public education, and
“provid[ing] information to Federal, State, and local policymakers, including the Congress, the
Federal executive branch, the Governor, State legislature, and State agencies.” Id. $6024(c)(4)(B),
(C)Fm     (I).

         It is true that “advocacy” activities and “providing information” to the legislature might be
construed as encompassing attempts to influence the passage or defeat of legislation. But in our
view both of these things, as well as the other activities recommended by the federal statute, could
be accomplished without engaging in activities that rise to the level of lobbying. Federal law does
not clearly require a state to use federal funds to engage in lobbying, nor does it clearly restrict a
state’s authority to prohibit the use of federal funds for lobbying. Furthermore, chapter 556 of the
Government Code “does not prohibit a state officer or employee from using state resources to
provide public information or to provide information responsive to a request.” TEX. GOV’T CODE
ANN. 5 556.006 (Vernon Supp. 2000). Thus, the Council could provide information to the
legislature, in furtherance of its duties under federal law, without violating the state lobbying
prohibition.

         Accordingly, we conclude that federal funds received by the state and appropriated for the
use of the Texas Council for Developmental Disabilities pursuant to the federal Developmental
Disabilities Assistance and Bill of Rights Act are subject to the lobbying restrictions of the state
Mr. Vernon M. Arrell - Page 7                   (X-0161)




General Appropriations Act and chapter 556 of the Government Code. Consequently, the Council
may use neither federal funds nor state funds to attempt to influence the passage or defeat of a
legislative measure.

                                      SUMMARY

                       The Texas Council for Developmental Disabilities is a state
               agency that uses money appropriated by the Legislature.            In
               accordance    with the lobbying      restrictions  of the General
               Appropriations Act and chapter 556 of the Government Code, the
               Council may use appropriated money to provide information to
               policymakers or to provide information responsive to a request from
               policymakers.    The Council may not, however, use appropriated
               money to influence the passage or defeat of any legislative measure.

                                             You    very truly,



                                            4 .(
                                             JOHtN
                                                    c7kT

                                                      CORNYN
                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Barbara Griffin
Assistant Attorney General - Opinion Committee
