ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

October 30,2006 

The Honorable Michael A. Stafford 

Harris County Attorney 

1019 Congress, 15thFloor 

Houston, Texas 77002 

Opinion No. GA-0476 

Re: -ether the Texas Department ofFamily and 

Protective Services may contract with a 

governmental entity to provide substitute care and 

case management services (RQ-0475-GA) 

Dear Mr. Stafford: 

On behalf of the Harris County Protective Services for Children land Adults (the 

“HCPSCA”), you ask three questions: (1) whether the Texas Department of Family and Protective 

Services (the “Department”) may contract with a governmental entity to provide substitute care and 

case management services; (2) whether an independent administrator may contract with a 

governmental entity to provide such services; and (3) whether a governmental entity may provide 

such services.’ 

HCPSCA provides protective services for children and adults under authority from both the 

Harris County Commissioners Court and the Department. TEX. HUM. REs. CODE ANN. § 152.1073 

(bt(c), (g) (Vernon 200 1); see also Request Letter, supra note 1, at i The HCPSCA has the powers 

and duties of a county child welfare board. TEX. HUM. REs. CODE ANN. 5 152.1073(b) (Vernon 

2001). As a county child welfare board, HCPSCA “is an entity ofthe [D]epartment for purposes of 

providing coordinated state and locai public welfare services for children and their families and for 

the coordinated use of federal, state, and local funds for these services.” TEX. FAM. CODE ANN. 

§ 264.005(d) (Vernon 2002). You inform us that the HCPSCA provides “substitute care and case 

management services for children in Harris County by contracting with [the Department],” and other 

services apparently by virtue of the Harris County Commissioners Court and section 152.1073 of 

the Human Resources Code. See Request Letter, supra note 1, at 1; TEX. HUM. RES. CODE ANN. 

5 152.1073 (Vernon 2001). The HCPSCA seeks guidance about its role in providing substitute care, 

case management, and other services for the children of Harris County after the recent overhaul of 

child protective services by Senate Bill 6, enacted by the Seventy-ninth Legislature. See Request 

Letter, supra note 1 i at l-2; Act of May 29, 2005, 79th Leg., R.S., ch. 268, 2005 Tex. Gen. Laws 

621,621-720. 

‘Letter from Honorable Michael A. Stafford, Harris County Attorney, to Honorable Greg Abbott, Attorney 

General ofTexas, at I (Apr. 13,2006) (on tile with the Opinion Committee, also available athap://~.oag.state.a.us) 

[hereinafter Request Letter]. 
The Honorable Michael A. Stafford - Page 2 (GA-0476) 

I. Privatization under Senate Bill 6 

Senate Bill 6 was enacted as a systemic reform of protective services programs. See HOUSE 

COMM. ON HUMAN SERVICES, BILL ANALYSIS, Tex. C.S.S.B. 6,79th Leg., R.S. (2005) (“CSSB 6 

would make dramatic, system-wide changes in protective services programs . . .“); SENATE 

RESEARCH CTR., BILL ANALYSIS, Tex. S.B. 6, 79th Leg., R.S. (2005) (“The bill responds to the 

governor’s executive orders calling for the systematic reforms of Child and Adult Protective 

Services.“); see also Tex. Gov. Exec. Order No. RP35 (July 2, 2004) (on file with the Opinion 

Committee), available athttp:l/~.govemor.state.tx.us/divisions/press/exorders/~35 (last visited 

Sept. l&2006). Among its major reforms, Senate Bill 6 privatizes certain services, reflected in its 

addition of a new chapter 45 of the Human Resources Code, entitled “Privatization of Substitute 

Care and Case Management Services,” and its revision of section 264.106 of the Family Code, 

concerning the Department’s authority to contract for such services. See TEx. HUM. REs. CODE ANN. 

$5 45.001-.153 (Vernon Supp. 2006); TEX. F~hl. CODE ANN. 5 264.106 (Vernon Supp. 2006). 

Chapter 45 of the Human Resources Code directs the Department to “complete the statewide 

privatization of the provision of substitute care and case management services” pursuant to a regionby-region transition plan. See Bx. HUM. RES. CODE ANN. §$ 45.002(a), .053(b), ,054 (Vernon 

Supp. 2006). Chapter 45 defines “privatize” as “to contract with a private entity to provide certain 

governmental services.” Id. 3 45.001(10). Both chapter 45 of the Human Resources Code and 

section 264.106 of the Family Code define “substitute care” and “case management services. 

Substitute care services are 

services provided to or for children in substitute care and their 

families, including the recruitment, training, and management of 

foster parents, the recruitment of adoptive families, and the 

facilitation of the adoption process, family preservation, independent 

living, emergency shelter, residential group care, foster care, 

therapeutic foster care, and post-placement supervision, including 

relative placement. 

TEx. FAM. CODE ANN. § 264,106(a)(5) (V emon Supp. 2006); see also TEX. HUM. REs. CODE ANN. 

§ 45.001(13) (Vernon Supp. 2006) (the only difference in the two sections being that section 45.001 

refers to “family reunification” rather than “family preservation”). Case management services are 

the provision of case management services to a child for whom the 

[Dlepartment has been appointed temporary or permanent managing 

conservator, including caseworker-child visits, family visits, the 

convening of family group conferences, the development and revision 

of the case plan, the coordination and monitoring of services needed 

by the child and family, and the assumption of court-related’duties, 

including preparing court reports, attending judicial hearings and 

permanency hearings, and ensuring that the child is progressing 

toward permanency within state and federal mandates. 

TEX. FAM. CODE ANN. § 264.106(a)(l) (Vernon Supp. 2006); TEx.’ HUM. REs. CODE ANN. 5 

45.001(l) (Vernon Supp. 2006). 
The Honorable Michael A. Stafford - Page 3 (GA-0476) 

In conjunction with chapter 45 ofthe Human Resources Code, section 264.106 ofthe Family 

Code requires the Department to: 

(2) either contract directly with private agencies as part of 

regional community-centered networks for the provision of all 

necessary substitute care and case management services or 

use an independent administrator to contract for those 

services; [and] 

(3) contract with an independent administrator, if cost beneficial, 

to coordinate and manage all services needed for children in 

the temporary or permanent managing conservatorship of the 

[Dlepartment in a designated geographic area[.] 

TEx. FAM. CODE ANN. § 264.106(b)(2)-(3) (V emon Supp. 2006). Such an independent 

administrator is 

an independent agency selected through a competitive procurement 

process to: 

(A) secure, coordinate, and manage substitute care services 

and case management services in a geographically designated area of 

the state; and 

(B) ensure continuity of care for a child referred to the 

administrator by the [Dlepartment and the child’s family from the day 

a child enters the child protective services system until the child 

leaves the system. 

TEX. FAM. CODE ANN. 5 264,106(a)(2).(V ernon Supp. 2006); see also TEX. HUM. RES. CODE ANN. 

5 45.001(6) (Vernon Supp. 2006), (providing an identical definition). 

II. Whether theDepartment may contract with a governmental entity to provide substitute 

care and case management services 

The HCPSCA currently provides substitute care and case management services as an arm of 

the Department. See Request Letter, supra note 1, at 1. Your first question is whether, under the 

terms of Senate Bill 6, the Department may contract with another governmental entity, such as the 

HCPSCA, to provide substitute care and case management services. Id. 

The Department’s authority to contract for substitute care and case management services is 

found in section 264,106(b)(2) of the Family Code. That provision states that: “The [Dlepartment 

shall either contract directly with private agencies ,. for the provision of all necessary 

substitute care and case management services or use an independent administrator to contract for 

those services.” TEx. FAM. CODE ANN. $ 264.106(b)(2) (Vernon Supp. 2006) (emphasis added). 
The Honorable Michael A. Stafford - Page 4 (GA-0476) 

Thus, section 264.106(b)(2) gives the Department two options. See Gum v. Phillips, 410 S.W.2d 

202, 206 (Tex. Civ. App.-Houston 1966, writ refd n. r. e.) (“the word ‘or’ is a disjunctive 

conjunction that indicates a choice between two alternatives generally corresponding to ‘either’ or 

‘either this or that”‘). The Department’s first option is to contract directly with “private agencies 

. for the provision of all necessary substitute care and case management services.” TEX. FAM. 

CODE ANN. 5 264.106(b)(2) (Vernon Supp. 2006) (emphasis added). As a governmental entity is 

not a private agency, the fist option does not allow the Department to contract with a governmental 

entity for the provision of substitute care and case management services. See id. The Department’s 

second option is to “use an independent administrator to contract for those services,” which does not 

authorize~the Department to contract directly for substitute care and case management services. Id. 

Thus, neither option under section 264.106(b)(2) authorizes the Department to contract directly with 

a governmental entity to provide substitute care and case management services. 

As you note, the Department has general authority under section 40.058 of the Human 

Resources Code to “enter into contracts or agreements with any person, including a’federal, state, 

or other public or private agency, as necessary to perform any of the [Dlepartment’s powers or 

duties,” which would include local public entities such as the HCPSCA. See Request Letter, supra 

note 1, at 4; TEX. HUM. RES. CODE ANN. 5 40.058(a) (Vernon Supp. 2006). But section 

264.106(b)(2)‘s specific provisions control over the Department’s general powers under section 

40.058. See City ofDallas v. Mitchell, 870 S.W.2d 21,23 (Tex. 1994) (holding that laws applicable 

in more limited circumstances control over “laws of general application”). Even if this were not the 

encase, the Department, after full implementation of Senate Bill 6, does not have the power to provide 

substitute care and, case management services in the fast place, except in an emergency or as a 

provider of last resort. &e TEX. FAM. CODE ANN. 5 264.106(ik(k) (Vernon Supp. 2006); TEX. HUM. 

RES. CODE ANN. 5 45002@)(3)-(e) (V ernon Supp. 2006). Consequently, because Senate Bill 6 

limits the Department’s substitute care and case management authority, the Department’s authority 

to contract with others to perform its duties under section 40.058(a) of the Human Resources Code 

is likewise limited. See TEX. HUM: RES. CODE ANN. § 40.058(a) (Vernon Supp. 2006). To answer 

your first question, then, the Department does not have the authority to contract with a governmental 

entity to provide substitute care and case management services, except to the extent that the 

Department has the authority to provide those services in an emergency or as a provider of last resort 

under chapter 45 of the Human Resources Code and section 264.106of the Family Code. 

III., Whether an independent administrator may contract with a governmental entity to 

provide substitute care and case management services 

Senate Bill 6 requires the Department to “contract with an independent tidministrator, if cost 

beneficial, to coordinate and manage all services needed for children in the temporary or permanent 

managing conservator&p of the [Dlepartment in’s designated geographic area.” TEX. FAM. CODE 

ANN. 5 264,106(b)(3) (Vernon Supp. 2006). An independent administrator’s services include 

“recruiting and subcontracting with community-based substitute care and case management 

providers to ensure a full array of services in defined geographic areas.” Id. $264.106(d)(l). Your 

second question is whether such an independent administrator may contract with a governmental 

entity who will in turn provide the needed substitute care and case management services, See 

Request Letter, supra note 1, at 1. 
The Honorable Michael A. Stafford - Page 5 (GA-0476) 

Section 264.106 does not expressly state that an independent administrator is forbidden to 

contract with a governmental entity to provide substitute care and case management services. See 

TEX. FAM. CODE ANN. § 264.106 (Vernon Supp. 2006). But that result is implied by the 

Department’s mandate to “either contract directly with private agencies or use an independent 

administrator to contract for those services.” Id. 5 264.106(b)(2). Moreover, that result is implied 

from reading Senate Bill 6 as a whole. See City ofSun Antonio v. Boerne, 111 S.W.3d 22,25 (Tex. 

2003) (stating that in construing a statute, courts “determine legislative intent from the entire act and 

not just its isolated portions”). 

The stated goal of Senate Bill 6 is to “complete the statewide privatization of the provision 

of substitute care and case management services in this state.” TEX. HUM. RES. CODE ANN. 

§ 45.002(a) (Vernon Supp. 2006);seealso id. § 45.001(10) (detining“privatize” tomeancontracting 

with a private entity). To implement that goal, section 45.004 of the Human Resources Code 

requires the Department to “develop a comprehensive strategy for contracting for management 

support services from independent administrators on a regional basis,.” See id. § 45.004(a). The 

strategy, “at a minimum, must . . require independent administrators to contract with private 

agencies” that will increase options for children who are difficult to place and expand efforts to 

recruit foster families and adoptive families. Id. 5 45,004(b)(2)(A)-(B) (emphasis added). More 

broadly, the Department may use an independent administrator in its transition plan in a region only 

if “the [Dlepartment determines that an independent administrator could manage and procure 

substitute care and case management services contracts with private agencies in a more 

cost-beneficial manner.” Id. 3 45.004(a) (emphasis added). The negative implication of section 

45.004 is that the Department may not utilize an independent administrator to contract with 

governmental entities to provide, substitute care and case management services. 

Two provisions in the Family Code further support this construction. Section 264.106 of the 

Family Code provides that the Department may be~the provider of last resort “in any region ofthe 

state in which the [Dlepartment or an independent administrator contracting with the [Dlepartment 

is unable to contract with a private agency to provide those services.” TEX. FAM. CODE ANN. 

5 264.106(k) (Vernon Supp. 2006) (emphasis added). And section 264.1063 provides that the 

“[Dlepartment, in consultation with private entities under contract with either an independent 

administrator or the [Dlepartment to provide substitute care or case management services, shall 

establish a quality assurance program.” Id. $ 264.1063(a) (emphasis added). The underlying 

assumption of both, sections ‘is that only private entities will provide substitute care and case 

management services. When read as a whole and in light of its stated purposes, Senate Bill 6 

authorizes an independent administrator to contract with private but not governmental entities to 

provide substitute care and case management services. 

The Department informs us that it does not interpret section 264.106 of the Family Code and 

chapter 45 ofthe H~uman Resources Code to prohibit a governmental entity from providing substitute 

care and case management services under a contract with an independent administrator because “the 

requirement to privatize is a duty imposed upon [the Department] and should not be deemed as a 
The Honorable Michael A. Stafford - Page 6 (GA-0476) 

required action of a private entity.“* In other words, the,Department argues that hits obligation to 

privatize is fulfilled upon contracting with an independent administrator that is a private entity. That 

may be true with respect to the Department’s duty to privatize, but the stated goal of Senate Bill 6 

is not merely to divest the Department of the duty to directly provide certain services, but to 

“complete the statewide privatization of the provision of substitute care and case management 

services in this state.” TEX. HUM. RES. CODE ANN. 5 45.002(a) (Vernon Supp. 2006) (emphasis 

added); see also id. 5 45;001(10) (defining “privatize’). We decline to adopt the Department’s 

construction because it is untenable in light of Senate Bill 6~‘stated objective. Denfon County Elec. 

Co-op., Inc. v. Pub. Util. Comm’n, 818 S.W.2d490,493 (Tex. App.-Texarkana 1991,writdenied) 

(stating that while courts consider administrative interpretation of a statute, they will not adopt an 

agency construction contrary to the statute, or allow agency interpretation of it to ascribe “express 

powers which the statute clearly does not grant, and in fact impliedly withholds”). 

IV. Whether a governmental entity may provide community services if such services are 

considered to be substitute care and case management services 

Your final question is whether, under the terms of Senate Bill 6, a governmental entity such 

as the HCPSCA may continue to provide community services if such services are considered to be 

substitute care and case management services. See Request Letter, supra note 1, at 1. In addition 

to the authority it receives from the Department, the HCPSCA also works under the authority of the 

Harris County Commissioners Court. Xx. HUM. ms. CODE ANN. § 152.1073 (Vernon 2001). You 

state that Harris County initiated programs for foster &ildren such as a crisis care center to provide 

.an initial psychological assessment of children coming into foster care, a health care clinic, an 

emergency shelter, and programs for other services. Request Letter, supra note 1, at 1. You do not 

state whether these programs are provided under authority from the Department or from the Harris 

County Commissioners Court. It appears that, at least in some instances, the HCPSCA provides 

services and programs for Harris County childrennot served by the Department. See CPS INHARRIS 

COUNTY, About CPS in Harris County, at http://www.hc-ps.orglabout-cps-in-hc.htm (last visited 

Sept. l&2006). 

As explained above, a governmental entity does not have authority to provide general 

substitute child care and case management services under contract with the Department or an 

independent administrator, although a governmental entity may provide emergency services or 

services as a provider of last resort on behalf of the Department. Thus, the HCPSCA may not 

provide general community services if they are provided under the authority of chapter 45 of the 

HumanResourccs Code and section264.106 oftheFamily Code. But Senate Bill 6 does notprohibit 

the HCPSCA from providing community services under authority of the Harris County 

Commissioners Court, which authority still exists under section 152.1073 of the Human Resources 

Code. 

2Brief from Gerry Williams, General Counsel, Texas Depahlent of Family and Protective Services, to 

Honorable Greg Abbott, Attorney General ofTexas, at 3 (June 12,2006) (on tile with the Opinion Committee). 
The Honorable Michael A. Stafford - Page 7 (GA-0476) 

SUMMARY, 

Under the terms of Senate Bill 6, Seventy-ninth Legislature, 

the Department of Family and Protective Services may not contract 

with a governmental entity for the provision of substitute care and 

case management services except for emergency services or as a 

service provider of last resort. In a region that has an independent 

administrator to procure substitute care and case management service 

providers, the independent administrator may not contract with a 

governmental entity to provide such services. Notwithstanding the 

privatization of substitute care and case management services, a 

governmental entity may continue to provide community services to 

the extent authorized by other law. 

Very truly yours, 

eneral of Texas 

RENT C. SULLlVAN 

First Assistant Attorney General 

ELLEN L. WITT 

Deputy Attorney General for Legal Counsel 

NANCY S. ~FULLER 

Chair, Opinion Committee 

William A. Hill 

Assistant Attorney General, Opinion Committee