### ATTORNEY GENERAL OF TEXAS GREG ABBOTT

August 15,2006

Mr. Albert Hawkins Executive Commissioner Opinion No. GA-0447
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 bythe Health and Human Services Commission (RQ-0434-GA)
Dear Commissioner Hawkins:
You request anopinion regarding the Office forthe Prevention ofDevelopmental 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 isit, 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.

‘SeeLetter 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 atwww.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 ofMay 22,1999,76th Leg., R.S., ch. 751, $ 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 tothe office; (3) accept gifts and grants on behalf ofthe office from any public or private entity; (4) pay the salaries and benefits of the executive director and staff ofthe office; (5) reimburse the travel expenses and other actual and necessary expenses ofthe 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 ofthe 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 ofthe department. TEX.HUM. RES. CODEANN. 5 112.043(b) (Vernon 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. 1515, 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 ofJune 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 1.1S(a)(l), at 635. And the legislature provided that areference inthe 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.
II0 Analysis 1. Fiscal control and oversight
You first ask whether the Office isan autonomous state agency or whether itis subject to the Commission’s fiscal oversight and control. Request Letter, 

### supranote 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 understand your concern to be with the fiscal independence ofthe Office rather than with its status I

as a state agency.

The Office orits 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) (Vernon 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 ‘tofTramp. v. City ofSunset 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 alsoRequest 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 ofSunset Valley, 146 S.W.3d at 642. The Act directs the Commission toprovide andpay for administrative support services.3 See 

### TEX. HUM.RES. CODE ANN.$112.043 (Vernon 200 1);see 

### also HOUSE COMM.ONPUBLIC

HEALTH, 

### BILL ANALYSIS, 

### Tex.‘H.B. 1151,76th Leg., R.S. (1999) (“This bill also provides that [the Office] isadministratively 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 ofthe 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 ofthe Office, the administrative agency has limited control over those funds. See 

### id
Based on aplain 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 ofSunset Valley, 146 S.W.3d at 642. 20 Soliciting private grants 

### Younext ask whether the Office is authorized to solicit funds such asprivate grant moneys. 

### Request Letter,supranote 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 orpublic grants on behalf ofthe Office and accept and disburse funds for the Office did not amend or repeal the Office’s authority. 

### SeeAct 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.

3Areference to the Department in the law relating to transferred administrative support services is areference 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)

CODEANN. § 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). Inthe absence ofan express repeal, an old and anew statute that arenot positively repugnant will be construed as to give effect to both. 

### Id. Section 112.043 authorizes the Commission to

“accept, deposit, and disburse money 

### madeavailable tothe [Office]

.” TEX.HUM.RES.CODEANN. tj112.043(b)(2) (Vemon 200 1)(emphasis added). Italso authorizes the Commission to “accept gifts and grants 

### onbehalfof

### the [Office] from anypublic orprivate 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) (Vemon 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 orreceived by a state agency under law must be deposited in the state treasury. See TEX. GOV’TCODEANN. $404.093 (Vernon 2005) (application and exceptions); 

### id.$404.094(a) (funds, including grants and donations “collected orreceived by astate 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 tothosewho areblind, crippled, orotherwisephysically or mentally handicapped may accept money from private or federal sources, designated by the private or federal source as money to be used 

### inand establishing and equippingfacilities for assisting those who are blind, crippled, or otherwise physically or mentally handicapped 

### inbecoming gainfully employed, inrehabilitating and restoring the handicapped, and in providing other services determined bythestateagency tobeessentialfor thebettercareand treatment of

### thehandicapped. Money accepted under this subsection is state money. . .. The money may not be expended for any purposeMr. Albert Hawkins - Page 6 (GA-0447)

other than the purpose for which it was given. 

### Notwithstanding any otherprovision of

### this Constitution, the state agencies may expend money accepted under this subsection without the necessity of an 

### appropriation, unlesstheLegislature, bylaw,requiresthatthemoney beexpended only onappropriation.

... 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. CendantMortgage 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;seealso CityofE1Paso v.ElPaso 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. 

### SeeStringer, 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, 56(b); see

### also2GEORGE D. BRADEN

### etal.,THECONSTITUTION OF THESTATE

OF TEXAS: 

### AN ANNOTATED

ANDCOMPARATIVE ANALYSIS726 (1977) (“Subsection (b) was added to comply with the requirements ofthe 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 isresponsible forcoordinating efforts toprevent developmental disabilities rather than providing services to disabled persons. See 

### TEX. HUM. RES.CODEANN. $5 112.041, .044 (Vernon 2001). The Office’s statutory purpose isto “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 SENATE COMM.ONPUBLIC

HEALTH, 

### BILL ANALYSIS,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 oftargeted prevention programs.“); SXJNSET ADVISORYCOMMISSION, STAFF REPORT,

TEXASOFFICE

FOR THE PREVENTION

OFDEVELOPMENTAL DISABILITIES

at 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 ormentally 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.CODEANN. $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 asprivate 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) ofthe 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