Does Texas's evidence-based program rule apply to all DFPS child-prevention services?

TX AG Opinion GA-0508: Does the evidence-based program rule cover all DFPS prevention services?

Plain-English summary

A state senator asked whether the "evidence-based" requirement in section 265.004(a) of the Family Code applies to all of the prevention and early intervention programs that the Department of Family and Protective Services (DFPS) funds, or only to a narrower set. Chapter 265 of the Family Code directs DFPS to run a prevention and early intervention services division that provides services for at-risk children and their families. The chapter defines "prevention and early intervention services" broadly, as programs meant to provide early intervention or prevent the at-risk behaviors that lead to child abuse, delinquency, running away, truancy, and dropping out of school.

In 2005 the Legislature added section 265.004, titled "Use of Evidence-Based Programs for At-Risk Families." Subsection (a) directs DFPS, to the extent money is appropriated, to fund evidence-based programs offered by community-based organizations that are designed to prevent or ameliorate child abuse and neglect. Other subsections direct the agency to prioritize programs serving children whose race or ethnicity is disproportionately represented in the child protective services system and to periodically evaluate the abuse-and-neglect prevention programs.

The opinion read the statute by its plain language. Section 265.004(a) ties the evidence-based requirement specifically to programs "designed to prevent or ameliorate child abuse and neglect." Because the Legislature limited the requirement to that subset, the opinion concluded the requirement does not reach every program governed by chapter 265. The opinion relied on the canon that when the Legislature uses a term in one part of a statute and leaves it out elsewhere, the term should not be implied where it was left out. So the evidence-based requirement applies only to the DFPS programs designed to prevent or ameliorate child abuse and neglect, not to all programs the agency funds.

Currency note

This opinion was issued in 2007. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Chapter 265 of the Family Code, including section 265.004, has been amended since 2007. Anyone determining which DFPS programs must be evidence-based today should check the current statute rather than relying on the 2002-2006 versions cited here.

Who this opinion affected (as of 2007)

The Department of Family and Protective Services: The opinion told the agency that the evidence-based mandate in section 265.004(a) governed only its programs designed to prevent or ameliorate child abuse and neglect, not its full slate of prevention and early intervention programs under chapter 265.

Community-based organizations seeking DFPS funding: The opinion clarified that the evidence-based criterion attached to the child-abuse-and-neglect prevention programs, so organizations running those particular programs were the ones subject to that requirement.

Legislators and oversight staff: The opinion provided a plain-language reading distinguishing the broad chapter 265 services from the narrower evidence-based requirement the 2005 amendment added.

Common questions

Does the evidence-based requirement apply to every DFPS prevention program?
No. The opinion concluded the requirement in section 265.004(a) applies only to DFPS programs designed to prevent or ameliorate child abuse and neglect, not to all programs funded under chapter 265.

Why did the AG read it narrowly?
The opinion explained that section 265.004(a) ties the evidence-based requirement by its own terms to programs "designed to prevent or ameliorate child abuse and neglect," and that a term used in one part of a statute but omitted elsewhere should not be implied where omitted.

What does chapter 265 cover more broadly?
The opinion noted that chapter 265 directs DFPS to provide prevention and early intervention services, defined as programs to provide early intervention or prevent at-risk behaviors leading to child abuse, delinquency, running away, truancy, and dropping out of school.

What else does section 265.004 require?
The opinion noted the section also directs DFPS to prioritize programs serving children whose race or ethnicity is disproportionately represented in the child protective services system and to periodically evaluate the abuse-and-neglect prevention programs for continued effectiveness.

Background and statutory framework

Chapter 265 of the Family Code, enacted in 1999, directs DFPS to operate a prevention and early intervention services division providing services for at-risk children and their families, consolidating those services in a single agency; "prevention and early intervention services" are defined as programs intended to provide early intervention or prevent at-risk behaviors that lead to child abuse, delinquency, running away, truancy, and dropping out of school (Tex. Fam. Code Ann. § 265.002 (Vernon 2002); § 265.001(3)).

In 2005 the Legislature added section 265.004, which directs DFPS, to the extent money is appropriated, to fund evidence-based programs offered by community-based organizations designed to prevent or ameliorate child abuse and neglect, to prioritize programs targeting children whose race or ethnicity is disproportionately represented in the child protective services system, and to periodically evaluate those abuse-and-neglect prevention programs (Tex. Fam. Code Ann. § 265.004 (Vernon Supp. 2006); § 265.004(a)).

Construing the statute by its plain language to give effect to legislative intent, and applying the canon that a term used in one section and omitted in another should not be implied where omitted, the opinion concluded the evidence-based requirement reaches only the abuse-and-neglect programs, not all chapter 265 programs (Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999); In re Canales, 52 S.W.3d 698, 702 (Tex. 2001); Laidlaw Waste Systems (Dallas) Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995)).

Citations

Statutes:

• Tex. Fam. Code Ann. §§ 265.001(3), 265.002 (Vernon 2002); §§ 265.004, 265.004(a) (Vernon Supp. 2006)

Cases:

• Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999)
• In re Canales, 52 S.W.3d 698, 702 (Tex. 2001)
• Laidlaw Waste Systems (Dallas) Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0508
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2007/ga0508.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

January 30, 2007

The Honorable Jane Nelson
Chair, Committee on Health and Human Services
Texas State Senate
Post Office Box 12068
Austin, Texas 78711-2068

Opinion No. GA-0508

Re: Whether the requirements of section 265.004(a) of the Family Code apply to all prevention and early intervention programs funded by the Department of Family and Protective Services (RQ-0513-GA)

Dear Senator Nelson:

You ask whether the requirements of section 265.004(a) of the Family Code apply to all prevention and early intervention programs funded by the Department of Family and Protective Services (the "DFPS").[1]

Chapter 265 of the Family Code, originally enacted in 1999, requires the DFPS, formerly the Department of Protective and Regulatory Services, to

operate a division to provide services for children in at-risk situations and for the families of those children and to achieve the consolidation of prevention and early intervention services within the jurisdiction of a single agency in order to avoid fragmentation and duplication of services and to increase the accountability for the delivery and administration of these services.

TEX. FAM. CODE ANN. § 265.002 (Vernon 2002). The division responsible for providing these services "shall be called the prevention and early intervention services division." Id. "Prevention and early intervention services" is defined as "programs intended to provide early intervention or prevent at-risk behaviors that lead to child abuse, delinquency, running away, truancy, and dropping out of school." Id. § 265.001(3).

In its 2005 regular session, the Legislature enacted section 265.004, entitled "Use of Evidence-Based Programs for At-Risk Families," which provides:

(a) To the extent that money is appropriated for the purpose, the department shall fund evidence-based programs offered by community-based organizations that are designed to prevent or ameliorate child abuse and neglect.

(b) The department shall place priority on programs that target children whose race or ethnicity is disproportionately represented in the child protective services system.

(c) The department shall periodically evaluate the evidence-based abuse and neglect prevention programs to determine the continued effectiveness of the programs.

Id. § 265.004 (Vernon Supp. 2006). Your question is whether the requirement that programs be evidence-based applies only to programs "designed to prevent or ameliorate child abuse and neglect," or whether the "evidence-based" requirement extends to all programs governed by chapter 265. See Request Letter, supra note 1.

In construing a statute, we must give effect to the Legislature's intent. Albertson's, Inc. v. Sinclair, 984 S.W.2d 958, 960 (Tex. 1999). In order to ascertain legislative intent, we begin by construing a statute according to its plain language. In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). The plain language of section 265.004(a) requires the DFPS to "fund evidence-based programs . . . that are designed to prevent or ameliorate child abuse and neglect." TEX. FAM. CODE ANN. § 265.004(a) (Vernon Supp. 2006) (emphasis added). Because this statute specifically limits the requirement of evidence-based programs to those that are "designed to prevent or ameliorate child abuse and neglect," the statute necessarily implies that the requirement of evidence-based programs is not applicable to all programs governed by chapter 265. See Laidlaw Waste Systems (Dallas) Inc. v. City of Wilmer, 904 S.W.2d 656, 659 (Tex. 1995) ("When the Legislature employs a term in one section of a statute and excludes it in another section, the term should not be implied where excluded.").

We conclude that the requirement for "evidence-based" programs in section 265.004(a) of the Family Code is applicable only to programs of the DFPS that are "designed to prevent or ameliorate child abuse and neglect" rather than to all programs funded by the DFPS.

SUMMARY

The requirement for "evidence-based" programs in section 265.004(a) of the Family Code is applicable only to programs of the Department of Family and Protective Services that are "designed to prevent or ameliorate child abuse and neglect" rather than to all programs funded by that Department.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

KENT C. SULLIVAN
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] See Letter from Honorable Jane Nelson, Chair, Senate Committee on Health and Human Services, to Honorable Greg Abbott, Attorney General of Texas (July 20, 2006) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].