Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
September 23, 1988
Mr. Vernon M. Arrell Opinion No. JM-955
Commissioner
Texas Rehabilitation Re: Application of section
Commission 111.025 of the Human Resources
118 E. Riverside Drive Code, regarding certain limita-
Austin, Texas 78704 tions on the purchase of ser-
vices by the Texas Rehabilita-
tion Commission (RQ-1299)
Dear Mr. Arrell:
On behalf of the Texas Rehabilitation Commission, YOU
ask four questions concerning the authority of the commis-
sioner to make certain factual determinations and take
action pursuant to section 111.025 of the Human Resources
Code. Section 111.025 provides the following in pertinent
part:
(a) An officer, employee, or paid consul-
tant of an organization that receives funds
from the commission in payment for the pro-
vision of rehabilitation servi,ces may not be
a member'or employee of the board, nor may a
person who cohabits with or is the spouse of
an officer, managerial employee, or ,paid
consultant of such an association be a member
of the board or an . employee of the board
grade.17 or over, including exempt employees,
according to the position classification
schedule: under 'the General Appropriations
Act.
You inform us of the commission's view that section
111.025 does not apply to organizations that do not fit the
definition of "rehabilitation facility" provided in section
7(10) of the federal Rehabilitation Act of 1973, 29 U.S.C.
section 706(13), or to organizations that do not provide
rehabilitation services as their primary task. You contend
that the legislative intent behind section 111.025 was to
place the commission at arm's length with those organiza;
tions with which it conducts business. You conclude that
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P. 4836
Mr. Vernon M. Arrell - Page 2 (JM-955)
the section should apply only to rehabilitation facilities
"created or continued" by the commission.1
In support of your argument, you describe two situa-
tions in which a literal application of section 111.025 will
yield, in your opinion, adverse and unintended results. The
first involves state colleges and universities:
[T]he Commission purchases educational ser-
vices from . . . State colleges [and uni-
versities]. The application of Section
111.025 to State universities and colleges
from whom the Commission purchases educa-
tional, rather than rehabilitation, services
is an example of an unintended result
which would come from such an interpreta-
tion . . . . The Commission had no hand in
establishing or continuing State universities
and colleges, except by the very small
payments of fees and tuition for disabled
students, and such institutions do not have a
primary purpose of rehabilitating the dis-
abled. Therefore, Section 111.025 clearly
should not be applied to such institutions.
The second situation involves a contract between the
commission and the Guadalupe Economic Services Corporation
(hereinafter the corporation). You advise us that the cor-
poration is not organized primarily for the rehabilitation
of the disabled. Under the contract, the corporation agrees
to provide certain services designed to identify and assist
disabled migrant and seasonal farmworkers in El Paso County
and other handicapped persons who need assistance in obtain-
ing competitive employment. The corporation also agrees to
conduct an assessment of the feasibility of providing simi-
lar services in neighboring counties. The corporation de-
rives less than five percent of its total revenues from the
commission under this contract. The deputy director of the
corporation is the spouse of a managerial employee of the
1. You do not explain how a rehabilitation facility is
"created" or %ontinuedn by the commission. Your office has
informed us that these words simply refer to facilities or
programs that receive funds from the commission for rehabi-
litation services, either by grant or through contract -- in
other words, facilities established for the primary purpose
of providing rehabilitation services.
P- 4837
Mr. Vernon M. Arrell - Page 3 (JM-955)
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Texas Rehabilitation Commission who serves in a salary grade
above grade 17. You argue that because the corporation is
not a "rehabilitation facility,l' section 111.025 should not
apply.
On the basis of these facts, you request our opinion
on the following issues:
1. Whether the Commissioner of the Texas
Rehabilitation Commission may find as a
matter of fact that certain organizations,
such as State universities and colleges, and
the [Guadalupe Economic Services Corporation]
are not organizations from which the Commis-
sion purchases rehabilitation services and
that Section 111.025 [of the Human Resources
Code] therefore does not apply.
2. Whether the Commissioner of the Texas
Rehabilitation Commission may find as a mat-
ter of fact that rehabilitation facilities
created or continued by the Commission
are organizations governed by Section
111.025 . . . .
3. Whether the Commissioner of the Texas
Rehabilitation Commission, upon finding a
violation of Section 111.025, may take action
since Section 111.025 has neither a self-exe-
cuting feature nor any penalty attached.
4. Assuming the Commissioner of the Texas
Rehabilitation Commission 'may take action,
what is an appropriate remedy for a violation
of Section 111.025?
Insofar as these issues are predicated upon the board's
interpretation of section 111.025, we should first consider
whether that interpretation is correct. We. will begin with a
review of the history of section 111.025.
Section 111.025 was enacted in 1985 as part of the
nsunsetn review of the Texas Rehabilitation Commission.
Acts 1985, 69th Leg., ch. 603, at 2271. It was amended in
1987.to conform to the enactment of the Government Code.
Acts 1987, 70th Leg., ch. 167, f 2.19(19), at 1347. Section
111.025 is substantially the same in language and form as
thirteen other enactments of the 69th Legislature. See
Agric. Code 5 201.0141 (State Soil and Water #Conservation
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Board); Educ. Code 8 66.62 (Board for Lease of University
Pm 4838
Mr. Vernon M. Arrell - Page 4 (JM-955)
Lands): Hum. Res. Code 55 81.002 (Texas Commission for the
Deaf), 91.011 (Texas Commission for the Blind), 101.0031
(Texas Board on Aging): Nat. Res. Code 55 32.0123 (School
Land Board), 34.0133 (Boards for Lease of State-owned
Lands), 161.023 (Veterans' band Board); Parks & Wild. Code
§ 11.0122 (Parks & Wildlife Commission); Water Code 0s 5.059
(Texas Water Commission), 6.057 (Texas Water Development
Board); V.T.C.S. arts. 4477-5, 5 2.023 (Texas Air Control
Board), 5561c-2, 5 108 (Texas Commission on Drug and Alcohol
Abuse) . These provisions are directed at averting potential
conflicts of interest among members and employees of the
boards or commissions created by each of the enumerated
statutes. There are, however, other provisions that serve
similar purposes. See, u Hum. Res. Code 5 111.013
(qualifications for appoin%erZ to board of Rehabilitation
Commission); V.T.C.S. art. 6252-933, § 1 (forbidding state
officers and employees from holding any interest, financial
or otherwise, that is in substantial conflict with discharge
of their duties).
Though virtually identical to the other 1985 enactments
in form and, language, section 111.025 is broader in scope
than most of the provisions cited above. Comuare, a
Agric. Code 5 201.0141(b), (c) (prohibiting from Eoard
membership or employment officers, employees, etc., of 'Ia
statewide association whose primary purpose is soil and
water conservation~@); Hum. Res. Code 55 81.002(d) (*Ianasso-
ciation representing the interests of deaf or hearing-im-
paired persons), 91.011(b) ("an association that has as its
primary interest the provision of services to, or other
matters relating to, the blind"). In contrast to those
provisions, section 111.025 reaches all persons associated
with organizations that receive funds from the commission
"in payment for the provision of rehabilitation services."
To ascertain the proper meaning of section 111.025, then, we
must also learn the meaning of the term "rehabilitation
services."
Section 111.002 of the Human Resources Code defines
"rehabilitation services":
(5) 'Rehabilitation services'
eouloment. suoolies. aoods. or serv !EF n2
essarv to enable a handicaooed individual t0
g achieve
naxmm Ders nal S c . To enable
handicapped kdividual to engage in a gainfu:
occupation or achieve maximum personal inde-
pendenee the commission may engage in or
P. 4839
Mr. Vernon M. Arrell - Page 5 (JM-955)
contract for activities, including but not
limited to:
(A) evaluation of rehabilitation poten-
tial, including diagnostic and related
services incidental to the determination of
eligibility for services and the nature and
scope of services to be provided:
(B) counseling and guidance;
(C) physical and mental restoration
services necessary to correct or substan-
tially modify a physical or mental condi-
tion that is stable or slowly progressive;
(D) training;
(E) maintenance covering a handicapped
individual's basic living expenses, in-
cluding food, shelter, clothing, and other
subsistence expenses necessary to support
and derive the full benefit of the other
rehabilitation services being provided:
(F) transportation:
(G) placement in a suitable employment:
(H) postemployment services necessary
to maintain suitable employment:
(I) obtaining occupational licenses,
including any license, permit, or other
written authority required by a state,
city, or other governmental unit to be
obtained in order to enter an occupation or
small business, and providing tools,
equipment, initial stocks, goods, and
supplies: and
(J) pzftng other equipment, sup-
plies, or goods that can
ably be expected to benefit a handrzz;Eid
individual in terms of employment in a
gainful occupation achievement of
maximum personal inde;indence. (Emphasis
added.)
P. 4840
Mr. Vernon M. Arrell - Page 6 (JM-955)
The definition of rehabilitation services is broad
enough to encompass virtually all goods and services avail-
able to the commission to help a handicapped individual
obtain gainful employment and improve his quality of life,
including the services of state colleges and universities
and the Guadalupe Economic Services Corporation. In con-
trast, the definition of "rehabilitation facility" contained
in the Rehabilitation Act of 1973 places emphasis on facili-
ties "operated for the primary purpose of providing voca-
tional rehabilitation services to individuals with handi-
caps." 29 U.S.C. g 706(13). You,do not suggest that the
application of the f;t&r$pfinition is necessary to,comply
with any agreement federal government or is re-
quired as a condition for the acceptance of federal funds,
and we detect no legislative intention to incorporate the
federal definition into section 111.025. We must therefore
conclude that the board's narrow reading of section 111.025
is contrary to the clear language of that section and
section 111.002(5).
With this understanding of section 111.025, we can now
directly address the first three issues concerning the
authority of the commissioner to enforce that provision.
The commissioner of. the Texas Rehabilitation Commission
serves as the chief administrative officer of the agency.
Hum. Res. Code 5 111.017. He administers chapter 111 of the
Human Resources Code pursuant to policies adopted by the
board of the commission. Id. He is given authority to make
regulations necessary to carry out the purposes of chapter
111, subject to board approval. Id. 5 111.018(a). He is
also authorized to take whatever action is necessary or
appropriate to accomplish the objectives of the chapter.
Id. § 111.023. These provisions confer broad authority upon
the commissioner to administer and enforce chapter 111. We
believe they carry with them the implied authority to make
the factual determinations necessary to enforce section
111.025 and to take action in the event a breach of section
111.025 is discovered. See Bullock v. Calvert, 480 S.W.2d
367 (Tex. 1972). However, these broad statements of
authority do not grant the commissioner tinlimited latitude
in managing the affairs of the commission.
The language of section 111.025 curtails the discre-
tion of the commissioner by providing a clear standard for
establishing whether or to what extent a person is in-
eligible for employment by or membership on the board.
officers, employees, and paid consultants of organizations
that receive funds from the commission "in payment for the
provision of rehabilitation services" as defined by section
111.002(5) are ineligible for board membership or
P- 4841
Mr. Vernon M. Arrell - Page 7 (JM-955)
employment. Their spouses or cohabitants are ineligible for
board membership or employment at or above salary grade 17.
While we recognize that there may be harsh consequences, we
must presume the legislature had a definite purpose in mind
when it chose this broad standard of eligibility for member-
ship on the board or employment by the board. Unless a
statute is ambiguous, we are compelled to follow its clear
language. ReoublicBank Dallas, N.A. v. Interkal, Inc., 691
S.W.Zd 605 (Tex. 1985). Neither this office nor the commis-
sioner may ignore or alter the standard of eligibility
simply because it yields unwanted results. See State v.
MillSaD, 605 S.W.2d 366 (Tex. Civ. App. - Beaumont 1980, no
writ) (concluding that it is improper to add or to subtract
from an unambiguous statute).
Accordingly, we conclude that the commissioner of the
Texas Rehabilitation Commission has the authority to make
the factual determinations necessary to enforce section
111.025 of the Human Resources Code, but such determinations
must be made pursuant to the standards provided in that
section. The commissioner may not enforce a standard at
variance with section 111.025. The commissioner may take
action necessary to remedy a violation of section 111.025.
Your fourth inquiry concerns the appropriate remedy for
a violation of section 111.025. The Human Resources Code
places primary responsibility for establishing operational
policies in the board of the commission, 5ee Hum. Res. Code
5 111.017, and authorizes the commissioner to make
regulations governing personnel standards with the approval
of the board. & 5 111.018(a). We think these provisions
authorize the board and the commissioner to implement
policies and rules necessary to enforce section 111.025.
Once again, though, the board and the commissioner must be
guided by the language of that section.
You observe that section 111.025 provides no remedy for
a violation of the section. Other statutes with similar
eligibility limitations provide that b.oard members who
violate the prohibitions are subject to removal and that
employees who violate them are subject to.dismissal. See.
ur V.T.C.S. art. 8407a, 0 29B(c); Attorney General
Opinion JM-719 (1987). Section 111.0131 of the Human
Resources Code authorizes the removal of a board member who
violates section 111.025, but no section requires the
dismissal of an employee who violates section 111.025.
Clearly, an officer, employee, or paid consultant of an
organization supplying rehabilitation services to the
commission in exchange for commission funds is not eligible
for employment by the board at any salary grade. Their
P. 4842
Mr. Vernon M. Arrell - Page 0 (JM-955)
spouses or cohabitants who are employed by the board need
not necessarily be dismissed. However, the relationships
between board employees and persons associated with
organizations that supply rehabilitation services to the
commission may, in certain circumstances, affect the
independence of judgment of the employee and subject the
employee to discipline under article 62521933. Whether a
board employee who is the spouse or cohabitant of an
officer, employee, or paid consultant of such an organiza-
tion is subject to discipline under article 6252-9b is a
question of fact that must first be determined at the agency
level.
SUMMARY
The commissioner of the Texas Rehabili-
tation Commission may make the factual
determinations necessary to enforce section
111.025 of the Human Resources Code, but such
determinations must be made.pursuant to the
standards provided in that section. The com-
missioner may not enforce a standard at vari-
ance with section 111.025. The commissioner
may take action necessary to remedy a viola-
tion of section 111.025.
A board member who violates section
111.025 is subject to removal. Hum. Res. Code
5 111.0131(a)(3). Officers, employees, or
paid consultants of an organization that
receives funds from the commission for the
provision of rehabilitation services as
defined in section 111.002(S) of the Human
Resources Code are ineligible for appointment
to or employment by the board of the Rehabil-
itation Commission. Spouses and cohabitants
of such persons may not be members of the
board or employees of the board at or above
salary grade 17, according to the position
classification schedule under the General
Appropriations Act.
-JIM MATTOX
Attorney General of Texas ^.
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Mr. Vernon M. Arrerl - Page 9 (JM-955)
MARY KELLER
First Assistant Attorney General
mu MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Steve Aragon
Assistant Attorney General
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