Mr. Thomas M. Suehs Executive CommissionerATTORNEY GENERAL OF TEXAS GREG ABBOTT

February 17, 2011 Opinion No. GA-0845 Texas Health and Human Services Commission 4900 North Lamar Re: Whether the Health and Human Services Commissionmayadopt adefinitionoftheterm "affiliate" for purposes of section 32.0248 of the Human Resources Code (RQ-0903-GA) Austin, Texas 78751
DearMr. Suehs: Section 32.0248 ofthe Human Resources Code requires the Health and Human Services Commission ("HHSC") to establish a "five-year demonstration project through the medical assistanceprogramto expandaccesstopreventative healthandfamilyplanningservicesforwomen." TEX. HUM. RES. CODE ANN. § 32.0248(a) (West Supp. 2010). Subsection 32.0248(h) limits HHSC's authority to contract with affiliates ofentities that perform orpromote abortions. See id. § 32.0248(h). You ask aboutHHSC's authorityto adopt a specific definition ofthe term "affiliate" for purposes of subsection 32.0248(h).! Assumingthat subsection32.0248(h)isconstitutional,2weconsideryourquestion. Wenote that you do not indicate that the proposed language has been put forward as a formal proposed agency rule in accordance with the Texas Administrative Procedure Act. See Request Letter at 2; see also TEX. GOV'T CODE ANN. §§ 2001.002 (West 2008) (entitling chapter "Administrative Procedure Act"), 2001.023(a)-(b) (requiring notice of proposed rule to be published in Texas

ISee RequestLetter at 1; seealsoTex. Att'y Gen. Op. No. GA-0844 (2011) (describingdemonstrationproject within state's Medicaid program). 'You appear to question HHSC's authority because of a concern that subsection 32.0248(h) may be constitutionally infinn. See Request Letter at 2 (stating that the "distribution offunds to affiliates ofelective abortion providers has been the subject oflitigation in Texas and elsewhere"). In Opinion GA-0844, we conclude that section 32.0248(h) is likely not preempted by federal Medicaid laws and regulations, and do not address other potential constitutional infinnities. See Tex. Att'y Gen. Op. No. GA-0844 (2011) at 3 (observingthat "otherconstitutionalissues may raise fact questions, which cannot be resolved in an attorney general opinion"). Because an agency rule must be consistent with its statutory authority, should subsection 32.0248(h) be found to be unconstitutional, it would not serve as authority for HHSC to define the term "affiliate." See Gerst v. Oak Cliff Savs. & LoanAss'n, 432 S.W.2d 702, 706 (Tex. 1968) ("In exercising the powers and the broad authority granted by the Legislature, the only requirement is that [the agency's] rules and regulations must be consistent with the Constitution and Statutes ofthis State.").Mr. Thomas M. Suehs

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Register). Instead, it appears that you propose some language solely for the purpose ofseeking our opinion. 3 We will advise you only generally. "An administrative agency 'has only those powers that the Legislature expressly confers upon it' and 'any implied powers that are reasonably necessary to carry out the express responsibilities given to itbythe Legislature.'" SWEPILP v. R.R. Comm'n, 314 S.W.3d 253,259 (Tex. App.-Austin2010, pet. filed) (quotingPub. Uti!. Comm'n v. CityPub. Servo Bd., 53 SW.3d 310,315 (Tex. 2001». Chapter 32 ofthe Human Resources Code does not grant HHSC express authority to adopt rules in connection to the project. See generally TEX. HUM. REs. CODE ANN. §§ 32.001-.257 (West 2001 & Supp. 2010). However, chapter 32 does grant HHSC express authority to adopt rules necessary for the proper and efficient operation ofthe medical assistance program, of which the five-year demonstration project is a part. Id. §§ 32.021(c), .021(a) (West Supp. 2010) (designating HHSC as agency to administer the medical assistance programprovided in chapter 32). Under its authority to adopt rules to implementthe medical assistance program in chapter 32, we believe HHSC has authority to define by rule terms necessary for it to comply with restrictions in subsection 32.0248(h) contained therein. See Tex. Att'y Gen. Op. No. GA-0708 (2009) at 7 (concluding that the Edwards Aquifer Authority,under its authority to enforce its enabling act and to promulgate rules necessary to implement the act, had authority to "include its interpretation ofundefined terms in its rules as necessary to implement the Act"). "An agency may adopt only such rules as are authorized by and consistent with its statutory authority." Pruett V. Harris Cnty. BailBondBd., 249 S.W.3d447,452 (Tex. 2008). A rule maynot impose additional burdens, conditions, or restrictions that are inconsistent with the statutory provisions. See Cummins V. Travis Cnty. Water Control & ImprovementDist. No. 17, 175 S.W.3d 34,57 (Tex. App.-Austin2005, pet. denied). In decidingwhether an agencyhas exceededitsrule-

. makingpowers, the determinative factor is whether the rule's provisions are "in harmony with the

general objectives ofthe Actinvolved." Gerst, 432 S.W.2d at 706. And "[t]ypically construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language ofthe statute." Tex. BankersAss'n V. Ass'n ofCmty. Orgs.forReformNow (ACORN), 303 S.W.3d 404,408 (Tex. App.-Austin 2010, pet. filed) (quoting Tarrant Appraisal Dist. V. Moore, 845 S.W.2d 820, 823 (Tex. 1993». With these principles, and advising you only generally, we can advise you that HHSC does have the authority to adopt by rule a definition of "affiliate" that is consistent with subsection 32.0248(h) and that does not impose additional burdens, conditions, or restrictions.

3youtell us thatHHSCis "consideringproposing administrativerules that definethe term 'affiliate'" and seek our opinion ofpotential proposed language before you do so. Request Letter at 2.
.Mr. Thomas M. Suehs

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### SUMMARY The Health and Human Services Commission does have authority to adopt by rule a definition of"affiliate" that is consistent with subsection 32.0248(h), Texas Human Resources Code, andthat does not impose additional burdens, conditions, orrestrictions.

DANIELT. HODGE First Assistant Attorney General DAVID 

### J. SCHENCK Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Charlotte M. Harper Very truly yours,

Assistant Attorney General, Opinion Committee