@ffice of tfie IZlttornep 

Qtate of @exae 

September 11.1991 

@eneral 

Robert A MacLean, M.D. 

Acting Commissioner 

Texas Department of Health 

1100 West 49th Street 

Austin, Texas 787563199 

Opinion No. DM- 39 

Re: Construction of the public hearing 

requirement for certain state grants 

awarded pursuant to the Human Immunodeficiency Virus Services Act, chapter 

85, Health and Safety Code (RQ-92) 

Dear Dr. MacLean: 

Your agency has asked us to construe the public hearing requirement for 

certain state grants awarded to nonprofit community organizations pursuant to the 

Human Immunodeficiency Virus Services Act (the “act”). See V.T.C.S. art. 4419b-4. 

The act was initially adopted in 1989 and subsequently codified in 1991 during the 

regular legislative session as chapter 85 of the Health and Safety Code. Acts 1991, 

72d Leg., ch. 14, # 36, at 62-73; Acts 1989, 7lst Leg., ch. 1195, 8 1, at 4854-64. 

Chapter 85 took effect September 1,199l. Subchapter B of chapter 85 requires the 

Texas Department of Health (the “department”) to establish and administer a state. 

grant program to nonprofit community organizations for HIV education, prevention, 

risk reduction, treatment, health, and social services programs. See Health & 

Safety Code 9 85.031. 

Section 85.034 of subchapter B, which requires the department to establish 

grant application procedures and eligibility guidelines, provides in pertinent part: 

(a) The department shall establish application procedures 

and eligibility guidelines for the state grants under this 

, subchapter. 

(b) Application procedures must include regional public 

hearings after reasonable notice in the region in which the community organization is based before awarding an initial grant or 

grants totalling more tlm $25,000 annually. (Emphasis added.) 

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Robert A. MacLean, M.D. - Page 2 (DM-39) 

In accordance with these provisions, the department has adopted formal rules 

describing the grant application procedures and eligibility guidelines for grants 

awarded pursuant to subchapter B. See 25 T.A.C. 99 98.1 - 98.44; Tex. Dep’t. 

Health, 15 Tex. Reg. 4819 (to be codified at 25 T.A.C. 8s 98.61- 98.89); Tex. Dep’t. 

Health, 16 Ten Reg. 971 (to be codified at 25 T.A.C. 9 98.90). Those rules provide 

that the department shall contract with eligible organizations for the provision of 

HIV services. 25 T.A.C. 5 98.22(a); Tex. Dep’t Health, 15 Tex. Reg. 4821 (to be 

codified at 25 TALC. Q 98.82(a)). Those rules also provide that regional public 

hearings will be conducted before the award of an initial grant or grants totaling in 

excess of $25,000, but that no public hearing will be required for the renewal of a 

contract. 25 T.A.C. 0 98.22(e); Tex. Dep’t Health 15 Tex. Reg. 4821 (to be codified 

at 25 T.A.C. 9 98.82(e)). _ 

The department has requested our assistance in construing the public 

hearing requirement in section 85.034(b). In particular, the .department requests 

that we interpret the phrase “an initial grant or grants totalling in excess of $25,000 

aMually.” In information submitted to us, the department states that it has 

construed this language to require public hearings only before the award of an 

initial grant in excess of $25,000, and to not require public hearings prior to the 

renewal of any previousl) awarded grant. In that information, the department also 

states that it construes this language to prohibit it from circumventing the public 

hearing requirement by awarding a series of initial grants to an eligible organization 

that separately are for $25,000 or less, but which together exceed $25,000. The 

department seeks our guidance because this language is subject to differing 

interpretations. For instance, the statutory language could be construed to require 

a public. hearing before the award of any initial grant regardless of its amount as 

well as before the renewal of a grant in excess of $25,000. After a review of the 

legislative history, however, we conclude that only the department’s interpretation 

of section 85.034(b) is correct. 

The legislature’s adoption of Senate Bill 959 in 1989 enacted the provision 

subsequently codified as section 85.034(b). As introduced in the Senate and as sent 

to the House for consideration, Senate Bill 959 did not include a public hearing 

requirement for state grants awarded to nonprofit community organizations. See 

C.S.S.B. 959, 71st Leg. (1989) (Senate committee substitute located in bill file to 

S.B. 959); S.J. of Tex., 71st Leg., at 1374-78 (1989) (amendments to Senate C.S.S.B. 

959 on second and third readings in the Senate). The House, prior to its 

consideration of Senate Bill 959, had discussed and amended on the floor the 

committee substitute for House Bill 1901, the companion bill to Senate Bill 959. 

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Robert A. MacLean, M.D. - Page 3 (DM-39) 

HJ. of Tex., 71st Leg., at 2108-10 (1989). As issued from the House Committee on 

Public Health, the committee substitute for House Bill 1901 included in section 

2.02(a) of article 2 of the act a requirement that the department’s grant application 

procedures for grants to nonprofit community organizations “include a public hearing, after reasonable notice, in the county in which the community organization is 

based before awarding a grant.” See C.S.H.B. 1901, art. 2, !4 2.02(a), 71st Leg. (1989) 

(House committee substitute located in bill file to H.B. 1901). An amendment 

sponsored by Representative Brad Wright on the floor amended that language in 

section 2.02(a) by adding the phrase “or grants totalling in excess’ of $10,000 

annually.” HJ. of Tex., 71st Leg., at 2110 (1989) (second reading of C.S.H.B. 1901). 

Prior to adoption of the amendment, the sponsor explained that the committee 

substitute for House Bill 1901 would require a public hearing before awarding any 

grant to a community organization and that the purposes of his amendment was to 

avoid the cost of the hearing procedure exceeding the amount of the award by 

applying the public hearing requirement only “to grants in excess of $10,000.” 

Debate on C.S.H.B. 1901 on the Ploor of the House, 71st Leg. (May 19, 1989) (tape 

available through Office of the House Committee Coordinator). Thus, the phrase 

“totalling in excess of $10,000 annually” was meant to modify the word “grant” as 

well as “grants.” 

In lieu of the amended committee substitute for House Bill 1901, the House 

subsequently considered on the floor the committee substitute for Senate Bill 959 

that was issued by the House Committee on Public Health. HJ. of Tex., 71st Leg., 

at 2286 (1989); C.S.S.B. 959,71st Leg. (1989) (House committee substitute located 

in bill file to S.B. 959). In the House committee substitute for Senates Bill 959, the 

House committee included in section 2.02(a) of the act a provision requiring that 

the department’s grant application procedures for grants to nonprofit community 

organizations “include a public hearing, after reasonable notice, in the county in 

which the community organization is based before awarding a grant or grants 

totalling in excess of $10,000 annually.” The quoted language is identical to that in 

the House committee substitute for House Bill 1901 after adoption of Wright’s 

amendment on the floor of the House during second reading of the bill. The 

quoted language in the House committee substitute for Senate Bill 959 was 

thereafter amended during second reading on the floor of the House so that the 

public hearing requirement in section 2.02(a) applied only to “a grant or grants 

totalling in excess of $20,000.” H.J. of Tex., 71st Leg., at 2287 (1989) (emphasis 

added). 

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Robert A. MacLean, M.D. - Page 4 (DM-39) 

After the Senate refused to concur in the changes made by the House to 

Senate Bill 959, the House and the Senate met in conference to resolve their differences. In conference, section 2.02(a) of the act was amended to require the department’s grant application procedures to “include regional public hearings after 

reasonable notice in the region in which the community organization is based before 

awarding an initial grant or grants totalling in excess of $25,000 annually.” See S.J. of 

Tex., 71st Leg., at 3558, 3561 (1989) (Conference Committee report on S.B. 959, 

revised section 2.02(a)) (emphasis added); see ako Conference Committee side-byside comparison of House, Senate,’ and Conference versions of bill at 5, S.B. 959, 

71st Leg. (1989) (located in bill file to S.B. 959). 

The Conference Committee’s explanation of the changes to section 2.02(a) 

in the committee’s side-by-side comparison of its version of Senate Bill 959 with the 

House and Senate versions states that the committee’s version amended section 

2.02(a) to refer to-grants in excess of $25,000 and to require regional hearings “only 

with initial grants.” See Conference Committee side-by-side comparison, supra, at 

5. The Conference Committee’s explanation clearly indicates the legislature’s intent 

was to limit the public hearing requirement only to initial grants that exceed 

S25,ooo.’ 

Given this iegislative history, we conclude that section 85.034(b) does not 

require the department to hold hearings for the renewal of grants with eligible 

organizations or for the initial award of grants of $25,000 or less. However, section 

85.034(b) does not permit the department to award a series of initial grants to an 

eligible organization that separately are for $25,000 or less, but which together 

exceed $25,000, without holding a public hearing. 

lAt the same time that the Conference Committee amended section 2.02(a) to refer only to 

initial grants, the committee amended section 1.09 of article 1 of the act. Prior to amendment, section 

1.09 read “[a] contract entered into by the department under this article may not be for a term of more 

than one year, except that a contract may be renewed.” The committee added the phrase “without a 

public hearing” to the end of the quoted language. This phrase must have been added to clarify and be 

consistent with the public hearing requirement in section 2.02(a) of article 2 because at no time has any 

other part of article 1 or any other article of the act contained a public hearing requirement. Section 

1.09 has been coditied as section 85.015(e) of subchapter A of chapter 85. 

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Robert A. MacLean, M.D. - Page 5 (DM-39) 

SUMMARY 

The Texas Department of Health is not required by the 

Human Immunodeficiency Virus Services Act, chapter 85 of the 

Health and Safety Code, to hold a public hearing prior to the 

renewal of a grant to a nonprofit community organization; nor 

does the act require the department to hold a public hearing 

before the award of an initial grant that is $25,000 or less. The 

act requires the department only to hold a public hearing before 

awarding an initial grant that exceeds $25,000 or before 

awarding a series of initial grants to the same organization that 

exceed S25,OOO. 

Very truly yours, 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY (Ret) 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Celeste A. Baker 

Assistant Attorney General 

DAN MORALES 

Attorney General of Texas 

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