When does Texas have to hold a public hearing before giving an HIV-services grant?

Texas AG Opinion DM-0039: HIV-Services Grants Need a Public Hearing Only When an Initial Award Tops $25,000

Plain-English summary

The Texas Department of Health asked how to read the public-hearing requirement in the Human Immunodeficiency Virus Services Act. Section 85.034(b) of the Health and Safety Code says the department's grant application procedures must include regional public hearings, after reasonable notice, before awarding "an initial grant or grants totalling more than $25,000 annually" to a nonprofit community organization. The department wanted to confirm its reading: hearings are required only before an initial grant over $25,000, not before renewing a grant, and the department cannot avoid the requirement by breaking a large award into a string of smaller initial grants.

The Attorney General agreed with the department after tracing the bill's legislative history. The phrase had moved through several versions in 1989. A House committee substitute first required a hearing before awarding "a grant." A floor amendment by Representative Brad Wright added "or grants totalling in excess of $10,000 annually," and the sponsor explained the point was to spare small awards the cost of a hearing, so the dollar limit modified both "grant" and "grants." Later versions raised the figure to $20,000 and then, in conference committee, to $25,000, and the conference committee's own side-by-side explanation said the hearing requirement applied "only with initial grants." The conference committee also added the words "without a public hearing" to the contract-renewal provision (now section 85.015(e)) to keep it consistent.

Reading all of this together, the opinion concluded that section 85.034(b) does not require a hearing to renew a grant or to make an initial award of $25,000 or less. It requires a hearing only before an initial grant that exceeds $25,000, or before a series of initial grants to the same organization that together exceed $25,000.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The HIV Services Act and the Department of Health's grant rules have been amended and reorganized since, and the department itself was later folded into the Texas Health and Human Services system. Verify current law before relying on any specific dollar threshold or citation mentioned here.

Common questions

Does Texas have to hold a hearing every time it funds an HIV-services nonprofit?
No. Under this opinion, a regional public hearing is required only before an initial grant, or grants, totaling more than $25,000 a year. Smaller initial grants and renewals do not trigger it.

Does renewing an existing grant require a hearing?
No. The Attorney General read the statute, confirmed by the conference committee's addition of "without a public hearing" to the renewal provision, to exempt renewals.

Can the department avoid the hearing by giving several small grants instead of one big one?
No. The opinion concluded the department may not award a series of initial grants to one organization that are each $25,000 or less but together exceed $25,000 without holding a hearing.

Why did the opinion rely so heavily on legislative history?
Because the statutory phrase could be read more than one way. The drafting history, including the sponsor's floor explanation and the conference committee's side-by-side comparison, showed the legislature meant the threshold to apply to initial grants only.

Background and statutory framework

The Human Immunodeficiency Virus Services Act was adopted in 1989 (Acts 1989, 71st Leg., ch. 1195) and codified in 1991 as chapter 85 of the Health and Safety Code (Acts 1991, 72d Leg., ch. 14), effective September 1, 1991; it had also appeared as V.T.C.S. article 4419b-4. Subchapter B requires the Department of Health to establish and administer a grant program for nonprofit community organizations providing HIV education, prevention, treatment, and related services (Health and Safety Code section 85.031). Section 85.034(a) directs the department to set application procedures and eligibility guidelines, and section 85.034(b) requires those procedures to include regional public hearings before awarding an initial grant or grants totaling more than $25,000 annually. The department had adopted implementing rules at 25 T.A.C. sections 98.1 - 98.44, including section 98.22, providing that hearings precede initial awards over $25,000 but not renewals. The opinion reconstructed the bill's path through Senate Bill 959 and its companion House Bill 1901, the Wright floor amendment, the move from $10,000 to $20,000 to $25,000, and the conference committee report and side-by-side comparison, which limited the hearing requirement to initial grants and added "without a public hearing" to the renewal provision later codified as section 85.015(e).

Citations

Statutory and regulatory provisions:

• V.T.C.S. article 4419b-4 (Human Immunodeficiency Virus Services Act, as first adopted)
• Health and Safety Code chapter 85, especially §§ 85.031, 85.034 (grant program; application procedures and public-hearing requirement), and § 85.015(e) (contract renewal without a public hearing)
• 25 T.A.C. §§ 98.1 - 98.44, including § 98.22 (department grant rules)
• Acts 1989, 71st Leg., ch. 1195; Acts 1991, 72d Leg., ch. 14

Legislative history referenced: Senate Bill 959 and companion House Bill 1901, 71st Leg. (1989); House floor amendment by Representative Brad Wright; conference committee report and side-by-side comparison on S.B. 959.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0039
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0039.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

September 11, 1991

Robert A. MacLean, M.D.
Acting Commissioner
Texas Department of Health
1100 West 49th Street
Austin, Texas 78756-3199

Opinion No. DM-39

Re: Construction of the public hearing requirement for certain state grants awarded pursuant to the Human Immunodeficiency Virus Services Act, chapter 85, Health and Safety Code (RQ-92)

Dear Dr. MacLean:

Your agency has asked us to construe the public hearing requirement for certain state grants awarded to nonprofit community organizations pursuant to the Human Immunodeficiency Virus Services Act (the "act"). See V.T.C.S. art. 4419b-4. The act was initially adopted in 1989 and subsequently codified in 1991 during the regular legislative session as chapter 85 of the Health and Safety Code. Acts 1991, 72d Leg., ch. 14, § 36, at 62-73; Acts 1989, 71st Leg., ch. 1195, § 1, at 4854-64. Chapter 85 took effect September 1, 1991. Subchapter B of chapter 85 requires the Texas Department of Health (the "department") to establish and administer a state grant program to nonprofit community organizations for HIV education, prevention, risk reduction, treatment, health, and social services programs. See Health & Safety Code § 85.031.

Section 85.034 of subchapter B, which requires the department to establish grant application procedures and eligibility guidelines, provides in pertinent part:

(a) The department shall establish application procedures and eligibility guidelines for the state grants under this subchapter.

(b) Application procedures must include regional public hearings after reasonable notice in the region in which the community organization is based before awarding an initial grant or grants totalling more than $25,000 annually. (Emphasis added.)

In accordance with these provisions, the department has adopted formal rules describing the grant application procedures and eligibility guidelines for grants awarded pursuant to subchapter B. See 25 T.A.C. §§ 98.1 - 98.44; Tex. Dep't. Health, 15 Tex. Reg. 4819 (to be codified at 25 T.A.C. §§ 98.61 - 98.89); Tex. Dep't. Health, 16 Tex. Reg. 971 (to be codified at 25 T.A.C. § 98.90). Those rules provide that the department shall contract with eligible organizations for the provision of HIV services. 25 T.A.C. § 98.22(a); Tex. Dep't Health, 15 Tex. Reg. 4821 (to be codified at 25 T.A.C. § 98.82(a)). Those rules also provide that regional public hearings will be conducted before the award of an initial grant or grants totaling in excess of $25,000, but that no public hearing will be required for the renewal of a contract. 25 T.A.C. § 98.22(e); Tex. Dep't Health, 15 Tex. Reg. 4821 (to be codified at 25 T.A.C. § 98.82(e)).

The department has requested our assistance in construing the public hearing requirement in section 85.034(b). In particular, the department requests that we interpret the phrase "an initial grant or grants totalling in excess of $25,000 annually." In information submitted to us, the department states that it has construed this language to require public hearings only before the award of an initial grant in excess of $25,000, and to not require public hearings prior to the renewal of any previously awarded grant. In that information, the department also states that it construes this language to prohibit it from circumventing the public hearing requirement by awarding a series of initial grants to an eligible organization that separately are for $25,000 or less, but which together exceed $25,000. The department seeks our guidance because this language is subject to differing interpretations. For instance, the statutory language could be construed to require a public hearing before the award of any initial grant regardless of its amount as well as before the renewal of a grant in excess of $25,000. After a review of the legislative history, however, we conclude that only the department's interpretation of section 85.034(b) is correct.

The legislature's adoption of Senate Bill 959 in 1989 enacted the provision subsequently codified as section 85.034(b). As introduced in the Senate and as sent to the House for consideration, Senate Bill 959 did not include a public hearing requirement for state grants awarded to nonprofit community organizations. See C.S.S.B. 959, 71st Leg. (1989) (Senate committee substitute located in bill file to S.B. 959); S.J. of Tex., 71st Leg., at 1374-78 (1989) (amendments to Senate C.S.S.B. 959 on second and third readings in the Senate). The House, prior to its consideration of Senate Bill 959, had discussed and amended on the floor the committee substitute for House Bill 1901, the companion bill to Senate Bill 959. H.J. of Tex., 71st Leg., at 2108-10 (1989). As issued from the House Committee on Public Health, the committee substitute for House Bill 1901 included in section 2.02(a) of article 2 of the act a requirement that the department's grant application procedures for grants to nonprofit community organizations "include a public hearing, after reasonable notice, in the county in which the community organization is based before awarding a grant." See C.S.H.B. 1901, art. 2, § 2.02(a), 71st Leg. (1989) (House committee substitute located in bill file to H.B. 1901). An amendment sponsored by Representative Brad Wright on the floor amended that language in section 2.02(a) by adding the phrase "or grants totalling in excess of $10,000 annually." H.J. of Tex., 71st Leg., at 2110 (1989) (second reading of C.S.H.B. 1901). Prior to adoption of the amendment, the sponsor explained that the committee substitute for House Bill 1901 would require a public hearing before awarding any grant to a community organization and that the purpose of his amendment was to avoid the cost of the hearing procedure exceeding the amount of the award by applying the public hearing requirement only "to grants in excess of $10,000." Debate on C.S.H.B. 1901 on the Floor of the House, 71st Leg. (May 19, 1989) (tape available through Office of the House Committee Coordinator). Thus, the phrase "totalling in excess of $10,000 annually" was meant to modify the word "grant" as well as "grants."

In lieu of the amended committee substitute for House Bill 1901, the House subsequently considered on the floor the committee substitute for Senate Bill 959 that was issued by the House Committee on Public Health. H.J. of Tex., 71st Leg., at 2286 (1989); C.S.S.B. 959, 71st Leg. (1989) (House committee substitute located in bill file to S.B. 959). In the House committee substitute for Senate Bill 959, the House committee included in section 2.02(a) of the act a provision requiring that the department's grant application procedures for grants to nonprofit community organizations "include a public hearing, after reasonable notice, in the county in which the community organization is based before awarding a grant or grants totalling in excess of $10,000 annually." The quoted language is identical to that in the House committee substitute for House Bill 1901 after adoption of Wright's amendment on the floor of the House during second reading of the bill. The quoted language in the House committee substitute for Senate Bill 959 was thereafter amended during second reading on the floor of the House so that the public hearing requirement in section 2.02(a) applied only to "a grant or grants totalling in excess of $20,000." H.J. of Tex., 71st Leg., at 2287 (1989) (emphasis added).

After the Senate refused to concur in the changes made by the House to Senate Bill 959, the House and the Senate met in conference to resolve their differences. In conference, section 2.02(a) of the act was amended to require the department's grant application procedures to "include regional public hearings after reasonable notice in the region in which the community organization is based before awarding an initial grant or grants totalling in excess of $25,000 annually." See S.J. of Tex., 71st Leg., at 3558, 3561 (1989) (Conference Committee report on S.B. 959, revised section 2.02(a)) (emphasis added); see also Conference Committee side-by-side comparison of House, Senate, and Conference versions of bill at 5, S.B. 959, 71st Leg. (1989) (located in bill file to S.B. 959).

The Conference Committee's explanation of the changes to section 2.02(a) in the committee's side-by-side comparison of its version of Senate Bill 959 with the House and Senate versions states that the committee's version amended section 2.02(a) to refer to grants in excess of $25,000 and to require regional hearings "only with initial grants." See Conference Committee side-by-side comparison, supra, at 5. The Conference Committee's explanation clearly indicates the legislature's intent was to limit the public hearing requirement only to initial grants that exceed $25,000.[1]

Given this legislative history, we conclude that section 85.034(b) does not require the department to hold hearings for the renewal of grants with eligible organizations or for the initial award of grants of $25,000 or less. However, section 85.034(b) does not permit the department to award a series of initial grants to an eligible organization that separately are for $25,000 or less, but which together exceed $25,000, without holding a public hearing.

SUMMARY

The Texas Department of Health is not required by the Human Immunodeficiency Virus Services Act, chapter 85 of the Health and Safety Code, to hold a public hearing prior to the renewal of a grant to a nonprofit community organization; nor does the act require the department to hold a public hearing before the award of an initial grant that is $25,000 or less. The act requires the department only to hold a public hearing before awarding an initial grant that exceeds $25,000 or before awarding a series of initial grants to the same organization that exceed $25,000.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Celeste A. Baker
Assistant Attorney General

[1] At the same time that the Conference Committee amended section 2.02(a) to refer only to initial grants, the committee amended section 1.09 of article 1 of the act. Prior to amendment, section 1.09 read "[a] contract entered into by the department under this article may not be for a term of more than one year, except that a contract may be renewed." The committee added the phrase "without a public hearing" to the end of the quoted language. This phrase must have been added to clarify and be consistent with the public hearing requirement in section 2.02(a) of article 2 because at no time has any other part of article 1 or any other article of the act contained a public hearing requirement. Section 1.09 has been codified as section 85.015(e) of subchapter A of chapter 85.