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 by the Health and Human 

Services Commission (RQ-0434-GA) 

Dear Commissioner Hawkins: 

You request an opinion regarding the Office for the Prevention of Developmental 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 is it, 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. 

‘See Letter 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 at www.oag.state.tx.us) [hereinafter Request Letter]. 
Mr. Albert Hawkins - Page 2 (GA-0447) 

I 0 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 of May 22,1999,76th Leg., R.S., ch. 75 1, $ 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 to the office; 

(3) accept gifts and grants on behalf of the office from any public or 

private entity; 

(4) pay the salaries and benefits of the executive director and staff 

of the office; 

(5) reimburse the travel expenses and other actual and necessary 

expenses of the 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 of the 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 of the department. 

TEX. HUM. RES. CODE ANN. 5 112.043(b) (V ernon 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. 15 15, 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 of June 

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 1.1 S(a)(l), at 635. 

And the legislature provided that a reference in the 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. 

II 0 Analysis 

1 . Fiscal control and oversight 

You first ask whether the Office is an autonomous state agency or whether it is subject to the 

Commission’s fiscal oversight and control. Request Letter, supra note 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 of the Office rather than with its status 

I 

as a state agency. 

The Office or its 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) (V ernon 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 ‘t of Tramp. v. City of Sunset 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 also Request 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 of Sunset Valley, 146 S.W.3d at 642. The Act 

directs the Commission to provide and pay for administrative support services.3 See TEX. HUM. RES. 

CODE ANN. $112.043 (Vernon 200 1); see also HOUSE COMM. ON PUBLIC HEALTH, BILL ANALYSIS, 

Tex. ‘H.B. 115 1,76th Leg., R.S. (1999) (“This bill also provides that [the Office] is administratively 

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 of the 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 of the Office, the administrative agency has limited control over those funds. See id 

Based on a plain 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 of Sunset Valley, 146 S.W.3d at 642. 

2 0 Soliciting private grants 

You next ask whether the Office is authorized to solicit funds such as private grant moneys. 

Request Letter, supra note 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 or public grants on behalf of the 

Office and accept and disburse funds for the Office did not amend or repeal the Office’s authority. 

See Act 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. 

3A reference to the Department in the law relating to transferred administrative support services is a reference 

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) 

CODE ANN. § 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). In the absence of an express repeal, an old and a new statute that are not positively repugnant 

will be construed as to give effect to both. Id. Section 112.043 authorizes the Commission to 

“accept, deposit, and disburse money made available to the [Office] .” TEX. HUM. RES. CODE ANN. 

tj 112.043(b)(2) (V emon 200 1) (emphasis added). It also authorizes the Commission to “accept gifts 

and grants on behalf of the [Office] from any public or private 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) (V emon 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 or received by a state agency under law must be deposited in the state treasury. See TEX. 

GOV’T CODE ANN. $404.093 (Vernon 2005) (application and exceptions); id. $404.094(a) (funds, 

including grants and donations “collected or received by a state 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 to those who are blind, crippled, or otherwise physically or 

mentally handicapped may accept money from private or federal 

sources, designated by the private or federal source as money to be 

used in and establishing and equipping facilities for assisting those 

who are blind, crippled, or otherwise physically or mentally 

handicapped in becoming gainfully employed, in rehabilitating and 

restoring the handicapped, and in providing other services 

determined by the state agency to be essentialfor the better care and 

treatment of the handicapped. Money accepted under this subsection 

is state money. . . . The money may not be expended for any purpose 
Mr. Albert Hawkins - Page 6 (GA-0447) 

other than the purpose for which it was given. Notwithstanding any 

other provision of this Constitution, the state agencies may expend 

money accepted under this subsection without the necessity of an 

appropriation, unless the Legislature, by law, requires that the money 

be expended only on appropriation. . . . 

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. 

Cendant Mortgage 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; see also City ofE1 Paso v. El Paso 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. See Stringer, 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, 5 6(b); see also 2 GEORGE D. BRADEN et al., THE CONSTITUTION OF THE STATE OF TEXAS: 

AN ANNOTATED AND COMPARATIVE ANALYSIS 726 (1977) (“Subsection (b) was added to comply 

with the requirements of the 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 is responsible for coordinating efforts to prevent developmental disabilities rather 

than providing services to disabled persons. See TEX. HUM. RES. CODE ANN. $5 112.041, .044 

(Vernon 2001). The Office’s statutory purpose is to “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. ON PUBLIC 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 of targeted 

prevention programs.“); SXJNSET ADVISORY COMMISSION, STAFF REPORT, TEXAS OFFICE FOR THE 

PREVENTION OF DEVELOPMENTAL 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 or mentally 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. CODE ANN. $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 as private 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) of the 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