Can the Texas Health and Human Services Commission define 'affiliate' by rule for its family planning program?

Plain-English summary

Texas had set up a five-year demonstration project to expand women's preventative health and family planning services through the Medicaid program. A separate part of the same statute, subsection 32.0248(h) of the Human Resources Code, limited the Health and Human Services Commission's ability to contract with "affiliates" of organizations that perform or promote abortions. The statute used the word "affiliate" but did not define it. The agency's Executive Commissioner asked the Attorney General whether HHSC could adopt its own rule spelling out what "affiliate" means for that funding restriction.

The wrinkle is that Chapter 32 of the Human Resources Code does not expressly say HHSC may write rules for this particular demonstration project. The Attorney General looked instead at the broader grant of authority: Chapter 32 makes HHSC the agency that administers the medical assistance program and gives it express power to adopt rules necessary for the proper and efficient operation of that program. Because the demonstration project sits inside the medical assistance program, that general rulemaking power reaches it. And an agency with power to implement a statute can define the undefined terms it needs to carry the statute out.

So the answer was yes, with a limit. HHSC could define "affiliate" by rule, but the definition had to stay consistent with subsection 32.0248(h) and could not add burdens, conditions, or restrictions that the statute itself did not contain. The Attorney General was careful to flag that it advised only generally, since the agency had not yet formally proposed a rule under the Administrative Procedure Act, and it assumed without deciding that subsection 32.0248(h) was itself constitutional.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Health and Human Services Commission (as the opinion held for it): The opinion told HHSC it had authority to adopt a rule defining "affiliate" for the women's health and family planning demonstration project, drawn from its general power to adopt rules for the proper operation of the medical assistance program, even though Chapter 32 did not expressly authorize rules for that specific project.

On the limits of that authority (what the opinion clarified): Under the opinion, any such definition had to be consistent with subsection 32.0248(h) and could not impose additional burdens, conditions, or restrictions beyond what the statute provided. A rule that went further than the statute would exceed the agency's rulemaking power.

On what the opinion did not decide: The opinion assumed, without deciding, that subsection 32.0248(h) was constitutional, and noted that if the subsection were later found unconstitutional it could not serve as authority for any "affiliate" definition. It also advised only generally because no formal rule had yet been proposed under the Administrative Procedure Act.

Common questions

Can a Texas agency define a statutory term the Legislature left undefined?
The opinion concluded that an agency with authority to implement a statute may, by rule, define the terms it needs to carry that statute out, so long as the definition is consistent with the statute.

Did HHSC need express authority to write rules for this specific project?
No. The opinion concluded HHSC's general power to adopt rules for the proper and efficient operation of the medical assistance program reached the demonstration project, which is part of that program.

What were the limits on HHSC's definition of "affiliate"?
The opinion concluded the definition had to be consistent with subsection 32.0248(h) and could not add burdens, conditions, or restrictions that the statute itself did not impose.

Did the opinion decide whether the funding restriction was constitutional?
No. The opinion assumed subsection 32.0248(h) was constitutional for the sake of answering the question and did not resolve the constitutional issue.

Background and statutory framework

Section 32.0248 of the Human Resources Code required 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) limited HHSC's authority to contract with affiliates of entities that perform or promote abortions. Id. § 32.0248(h).

An administrative agency has only those powers the Legislature expressly confers on it, plus any implied powers reasonably necessary to carry out its express responsibilities. SWEPI LP v. R.R. Comm'n, 314 S.W.3d 253, 259 (Tex. App.—Austin 2010, pet. filed) (quoting Pub. Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001)). Chapter 32 does not expressly authorize HHSC to adopt rules for the demonstration project, but it does grant HHSC authority to adopt rules necessary for the proper and efficient operation of the medical assistance program, which HHSC administers. Tex. Hum. Res. Code Ann. §§ 32.021(c), .021(a) (West Supp. 2010); see generally id. §§ 32.001-.257 (West 2001 & Supp. 2010). An agency with authority to implement a statute may include its interpretation of undefined terms in its rules as necessary to implement the act.

That power is bounded. An agency may adopt only rules authorized by and consistent with its statutory authority, and may not impose additional burdens, conditions, or restrictions inconsistent with the statute. Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008); Cummins v. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 57 (Tex. App.—Austin 2005, pet. denied). The determinative factor is whether the rule is in harmony with the general objectives of the act. Gerst v. Oak Cliff Savs. & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968). An agency's construction of a statute it enforces is entitled to serious consideration if reasonable and not in conflict with the statute's plain language. 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)). Because the agency had not yet formally proposed a rule under the Administrative Procedure Act, the Attorney General advised only generally. See Tex. Gov't Code Ann. §§ 2001.002 (West 2008), 2001.023(a)-(b).

Citations

Statutes:

• Tex. Hum. Res. Code Ann. § 32.0248(a) (West Supp. 2010)
• Tex. Hum. Res. Code Ann. § 32.0248(h)
• Tex. Hum. Res. Code Ann. §§ 32.001-.257 (West 2001 & Supp. 2010)
• Tex. Hum. Res. Code Ann. §§ 32.021(c), .021(a) (West Supp. 2010)
• Tex. Gov't Code Ann. §§ 2001.002 (West 2008)
• Tex. Gov't Code Ann. § 2001.023(a)-(b)

Cases:

• Gerst v. Oak Cliff Savs. & Loan Ass'n, 432 S.W.2d 702, 706 (Tex. 1968)
• SWEPI LP v. R.R. Comm'n, 314 S.W.3d 253, 259 (Tex. App.—Austin 2010, pet. filed)
• Pub. Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.3d 310, 315 (Tex. 2001)
• Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008)
• Cummins v. Travis Cnty. Water Control & Improvement Dist. No. 17, 175 S.W.3d 34, 57 (Tex. App.—Austin 2005, pet. denied)
• 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)
• Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)

AG opinions referenced:

• Tex. Att'y Gen. Op. No. GA-0844 (2011)
• Tex. Att'y Gen. Op. No. GA-0708 (2009)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0845
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0845.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

February 17, 2011

Mr. Thomas M. Suehs Opinion No. GA-0845
Executive Commissioner
Texas Health and Human Services Commission Re: Whether the Health and Human Services
4900 North Lamar Commission may adopt a definition of the term
Austin, Texas 78751 "affiliate" for purposes of section 32.0248 of
the Human Resources Code (RQ-0903-GA)

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).[1]

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 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. Util. Comm'n v. City Pub. Serv. Bd., 53 S.W.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.

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.

Very truly yours,

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
Assistant Attorney General, Opinion Committee

[1] See Request Letter at 1; see also Tex. Att'y Gen. Op. No. GA-0844 (2011) (describing demonstration project within state's Medicaid program).

[2] You appear to question HHSC's authority because of a concern that subsection 32.0248(h) may be constitutionally infirm. 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 infirmities. 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.").

[3] You 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.