AGO GA-845.

Case DateFebruary 17, 2011
CourtTexas
Texas Attorney General Opinions 2011. AGO GA-845. February 17, 2011Mr. Thomas M. Suehs Executive Commissioner Texas Health and Human Services Commission 4900 North Lamar Austin, Texas 78751Opinion No. GA-0845Re: 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) 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).(fn1) Assuming that subsection 32.0248(h) is constitutional,(fn2) 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.(fn3) 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 and Supp. 2010). However, chapter 32 does grant HHSC express authority to adopt rules necessary for the proper and efficient operation of the medical assistance...

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