### ATTORNEY GENERAL 

### OFTEXAS
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 ofFamily 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 thepowers 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 forchildren in Harris County by contracting with [theDepartment],” 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 inproviding 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, supranote 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 ofprotective 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.,BILLANALYSIS,

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), availableathttp:l/~.govemor.state.tx.us/divisions/press/exorders/~35 (lastvisited Sept. l&2006). Among its major reforms, Senate Bill 6privatizes 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. SeeTEx.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 ofthe provision of substitute care and casemanagement services” pursuant to aregionby-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 ofthe 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) (Vemon 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 offamily groupconferences, the development andrevision 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.CODEANN. § 264.106(a)(l) (Vernon Supp. 2006); TEx.’HUM.REs. CODEANN. 5 45.001(l) (Vernon Supp. 2006).The Honorable Michael A. Stafford - Page 3 (GA-0476)

Inconjunction 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 forthe provision ofall necessary substitute care and case management services or use an independent administrator to contract for those services; [and] (3) contract with an independent administrator, ifcost beneficial, to coordinate and manage all services needed for children in the temporary orpermanent managing conservatorship ofthe [Dlepartment in a designated geographic area[.]
TEx. FAM. CODE ANN. § 264.106(b)(2)-(3) (Vemon 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 bythe [Dlepartment andthe child’s family from the day a child enters the child protective services system until the child leaves the system.
TEX.FAM.

CODE ANN.5264,106(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) ofthe 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 aprivate agency, the fist option doesnot allow the Department to contract with a governmental entity for the provision of substitute care and casemanagement services. See id. The Department’s second option is to “use an independent administrator to contract forthose services,” which does not authorize~theDepartment 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 asthe HCPSCA. See Request Letter, supra note 1, at 4; TEX. HUM. RES. CODEANN. 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. SeeCityofDallas 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 ifthis 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 oflastresort. &e TEX. FAM. CODE ANN. 5264.106(ik(k) (Vernon Supp.2006); TEX. HUM. RES.CODE

ANN.5 45002@)(3)-(e) (Vernon 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 nothave the authority to contract with agovernmental entity to provide substitute care and case management services, except to the extent that the Department has the authority toprovide those services in anemergency or as aprovider oflastresort under chapter 45 ofthe 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 6requires the Department to “contract with an independent tidministrator, ifcost beneficial, to coordinate and manage all services needed for children in the temporary orpermanent managing conservator&p ofthe [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 afull 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, supranote 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. 5264.106(b)(2). Moreover, that result is implied from reading Senate Bill 6 as a whole. See City ofSun Antoniov. Boerne, 111S.W.3d 22,25 (Tex. 2003) (stating that in construing a statute, courts “determine legislative intent from the entire act and notjust its isolated portions”).
The stated goal of Senate Bill 6 is to “complete the statewide privatization ofthe provision of substitute care and case management services in this state.” TEX.HUM.RES. CODEANN. §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 aregion 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 ofthe Family Code provides that the Department may be~theprovider of last resort “in any region ofthe state in which the [Dlepartment or anindependentadministratorcontracting 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.
TheDepartment informs usthat it does not interpret section 264.106 ofthe Family Code and chapter 45ofthe H~uman

Resources Code toprohibit agovernmental entity from providing substitute care and casemanagement services under acontract with anindependent administrator because “the requirement to privatize is a duty imposed upon [the Department] and should not be deemed as aThe Honorable Michael A. Stafford - Page 6 (GA-0476)

required action of a private entity.“* In other words, the,Department argues that hitsobligation to privatize is fulfilled upon contracting with an independent administrator that is aprivate 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 itis untenable in light of Senate Bill 6~‘s tated objective. Denfon CountyElec. 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, supranote 1, at 1. In addition to the authority itreceives from the Department, the HCPSCA also works under the authority ofthe 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 andprograms for Harris County childrennot served by the Department. See CPS INHARRIS COUNTY, About CPS inHarrisCounty, 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 6does notprohibit the HCPSCA from providing community services under authority of the Harris County Commissioners Court, which authority still exists under section 152.1073 ofthe 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 ofFamily 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 toprocure substitute care and casemanagement 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