Mr. Thomas M. Suehs 

Executive Commissioner 

ATTORNEY 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 

Commission may adopt a definition of the term 

"affiliate" for purposes of section 32.0248 of 

the Human Resources Code (RQ-0903-GA) 

Austin, Texas 78751 

Dear Mr. Suehs: 

Section 32.0248 of the Human Resources Code requires the Health and Human Services 

Commission ("HHSC") to establish a "five-year demonstration project through the medical 

assistance program to expand access to preventative health and family planning services for women." 

TEX. HUM. RES. CODE ANN. § 32.0248(a) (West Supp. 2010). Subsection 32.0248(h) limits 

HHSC's authority to contract with affiliates of entities that perform or promote abortions. See id. 

§ 32.0248(h). You ask about HHSC's authority to adopt a specific definition of the term "affiliate" 

for purposes of subsection 32.0248(h).! 

Assuming that subsection 32.0248(h) is constitutional,2 we consider your question. We note 

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 

I See Request Letter at 1; see also Tex. Att'y Gen. Op. No. GA-0844 (2011) (describing demonstration project 

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 of funds to affiliates of elective abortion 

providers has been the subject of litigation 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 (observing that "other constitutional issues 

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. & Loan Ass '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 of this State."). 
Mr. Thomas M. Suehs - Page 2 (GA-0845) 

Register). Instead, it appears that you propose some language solely for the purpose of seeking 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 it by the Legislature.'" SWEPI LP v. R.R. Comm'n, 314 S.W.3d 253,259 

(Tex. App.-Austin 2010, pet. filed) (quoting Pub. Uti!. Comm'n v. City Pub. Servo Bd., 53 SW.3d 

310,315 (Tex. 2001». Chapter 32 of the 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 of the 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 program provided 

in chapter 32). Under its authority to adopt rules to implement the 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 of undefined 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. Bail Bond Bd., 249 S.W.3d 447,452 (Tex. 2008). A rule may not 

impose additional burdens, conditions, or restrictions that are inconsistent with the statutory 

provisions. See Cummins V. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 

34,57 (Tex. App.-Austin 2005, pet. denied). In deciding whether an agency has exceeded its rule-

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

general objectives of the Act involved." 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 

of the statute." Tex. Bankers Ass 'n V. Ass'n of Cmty. Orgs.for Reform Now (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. 

3you tell us that HHSC is "considering proposing administrative rules that define the term 'affiliate'" and seek 

our opinion of potential proposed language before you do so. Request Letter at 2. . 
Mr. Thomas M. Suehs - Page 3 (GA-084S) 

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, and that 

does not impose additional burdens, conditions, or restrictions. 

DANIEL T. 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