Can the Texas Long-Term Care Ombudsman testify for or against bills at the Legislature?

Plain-English summary

The chair of the Texas House Committee on Human Services asked the AG a narrow but practical question: when the State Long-Term Care Ombudsman appears at a legislative committee hearing, may she testify "for" or "against" a bill, or is she limited to testifying "on" the bill because of the ethics rules that bar state agencies from lobbying? The Ombudsman heads the Office of the State Long-Term Care Ombudsman, which the Department of Aging and Disability Services operates.

The AG started with the Ombudsman's duties. The Human Resources Code requires the Office to provide information to public agencies, legislators, and others about the concerns of elderly residents, to analyze and monitor the development of laws affecting long-term care facilities and services, and to recommend any changes it considers necessary. A separate provision requires the Office's annual report to include policy, regulatory, and legislative recommendations. Federal law under the Older Americans Act layers on a parallel duty: the Ombudsman must analyze, comment on, and monitor laws affecting residents and recommend changes the Office finds appropriate, and federal regulations require that the Ombudsman be able to recommend changes independently and be excluded from state lobbying prohibitions where those prohibitions conflict.

Against those duties, the AG set Government Code section 556.006(a), which bars a state agency from using appropriated money to influence the passage or defeat of a legislative measure. The AG acknowledged that recommending a new law is an attempt to influence legislation, so on its face the general prohibition would block the Ombudsman from carrying out her commenting-and-recommending duty. The AG resolved the conflict two ways. First, section 556.006(b) lets a state officer use state resources to provide information responsive to a request, and the AG concluded that when a statute specifically requires an agency representative to comment on the law and make recommendations, the statute itself functions as a legislative request, so those required comments are permitted responsive information. Second, applying the rule that a specific statute prevails over a general one, the AG found the Human Resources Code duties (which apply only to the Ombudsman and the Office, and only as to long-term care laws) are specific, while section 556.006 is general. Because nothing in the later 1997 general prohibition showed an intent to override the Ombudsman's specific duties, the AG concluded those duties prevail as an exception. The bottom line: the Ombudsman may register a position and testify for or against legislation, to the extent necessary to perform her state and federal duties.

Currency note

This opinion was issued in 2017. 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.

What the opinion meant for those who asked

The requesting committee chair (as the opinion described it): The opinion answered that the State Long-Term Care Ombudsman may register a position and testify for or against legislation pending before the Texas Legislature, to the extent necessary to perform her statutory duty, rather than being limited to testifying only "on" a bill.

The Ombudsman and Office staff (as the opinion described them): The opinion treated the Human Resources Code commenting-and-recommending duties as specific legislation that prevails over the general anti-lobbying prohibition, so the lobbying statute does not preclude the Ombudsman from performing those duties at a hearing.

Other state agencies (as the opinion described them): The opinion left the general rule of section 556.006(a) intact for agencies generally; the exception it recognized was grounded in the Ombudsman's specific statutory duties, not a broad license for agencies to lobby.

Common questions

Was the Ombudsman limited to neutral testimony only?
No. The opinion concluded she may testify for or against legislation, not only "on" it, to the extent necessary to perform her statutory duties.

Didn't the state anti-lobbying law forbid this?
The opinion explained that Government Code section 556.006(a) generally bars agencies from using appropriated money to influence legislation, but the Ombudsman's specific Human Resources Code duties to comment and recommend prevail over that general prohibition.

Why did the specific statute win over the general one?
The opinion applied the construction rule that a specific statute prevails over a general one when they conflict, unless the later general statute shows intent to control. Here the 1997 general prohibition showed no intent to override the Ombudsman's specific duties.

Did the opinion rely on federal law to reach this result?
The opinion noted the federal Older Americans Act and its regulations impose parallel commenting-and-recommending duties, but it resolved the question on state statutory-construction grounds and did not decide the federal-funds lobbying-condition issue.

Background and statutory framework

The State Ombudsman is the chief administrator of the Office of the State Long-Term Care Ombudsman, which the Department of Aging and Disability Services operates (Tex. Hum. Res. Code §§ 101A.251(5), 101A.251-.264, 101A.252, 101A.001(2)). The Office must provide information to public agencies, legislators, and others about elderly residents' concerns, analyze and monitor laws affecting long-term care, and recommend changes it considers necessary, and its annual report must include legislative recommendations (Tex. Hum. Res. Code §§ 101A.261, 101A.260, 101A.262, 101A.262(a)(2)). The Office operates in cooperation with agencies under the Older Americans Act and holds all powers and duties required by state and federal law (Tex. Hum. Res. Code §§ 101A.253, 101A.254). Federal law imposes parallel duties to analyze, comment on, monitor, and recommend changes to laws affecting residents, and federal regulations require the Ombudsman to recommend changes independently and be excluded from conflicting state lobbying prohibitions (42 U.S.C. §§ 3001 et seq., 3058g, 3058g(a)(1)-(3), 3058g(a)(3)(G)(i)-(ii); 45 C.F.R. §§ 1324.11(e)(8), 1324.11(e)(5)(i), 1324.13(a)(7)(i), (ii); Pub. L. No. 102-375, § 712, 106 Stat. 1277).

Government Code section 556.006(a) bars a state agency from using appropriated money to influence the passage or defeat of legislation, and section 556.008 bars compensating an employee who violates that prohibition, but section 556.006(b) does not prohibit providing public information or information responsive to a request (Tex. Gov't Code §§ 556.006(a), 556.006(b), 556.008). Courts must harmonize statutes and give effect to each unless irreconcilable, and a specific statute usually prevails over a general one unless the later general statute manifests an intent to prevail (Tex. Gov't Code §§ 311.025(b), .026(a), 311.026(b); City of Waco v. Lopez, 259 S.W.3d 147 (Tex. 2008); Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290 (Tex. 2011)). The AG read the statutory mandate to comment and recommend as a legislative request that section 556.006(b) allows the Ombudsman to answer (Texans Uniting for Reform & Freedom v. Saenz, 319 S.W.3d 914 (Tex. App.—Austin 2010, pet. denied)). The AG resolved the question on state statutory-construction grounds and did not reach the federal-funds lobbying-condition issue (Tex. Att'y Gen. Op. No. JC-0161 (1999)).

Citations

Constitutional and statutory provisions:

• Tex. Hum. Res. Code §§ 101A.251-.264, 101A.251(5), 101A.252, 101A.001(2), 101A.253, 101A.254, 101A.260, 101A.261, 101A.262, 101A.262(a)(2)
• Tex. Gov't Code §§ 556.006(a), 556.006(b), 556.008, 311.025(b), .026(a), 311.026(b)
• 42 U.S.C. §§ 3001 et seq., 3058g, 3058g(a)(1)-(3), 3058g(a)(3)(G)(i)-(ii)
• 45 C.F.R. §§ 1324.11(e)(8), 1324.11(e)(5)(i), 1324.13(a)(7)(i), (ii)
• Pub. L. No. 102-375, § 712, 106 Stat. 1277

Texas Attorney General opinions:

• Tex. Att'y Gen. Op. No. JC-0161 (1999)

Cases:

• Texans Uniting for Reform & Freedom v. Saenz, 319 S.W.3d 914 (Tex. App.—Austin 2010, pet. denied)
• City of Waco v. Lopez, 259 S.W.3d 147 (Tex. 2008)
• Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290 (Tex. 2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0136
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2017/kp0136.pdf

Original opinion text

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

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

March 13, 2017

The Honorable Richard Peña Raymond Opinion No. KP-0136
Chair, Committee on Human Services
Texas House of Representatives Re: Whether the State Long-Term Care
Post Office Box 2910 Ombudsman may register a position and testify
Austin, Texas 78768-2910 for or against legislation pending before the
Texas Legislature (RQ-0130-KP)

Dear Mr. Raymond:

    The State Ombudsman (the "Ombudsman") is the chief administrator of the Office of the State Long-Term Care Ombudsman (the "Office"). TEX. HUM. RES. CODE § 101A.251(5). As discussed more fully below, both Texas and federal law authorize and require the Office to recommend changes to the law it deems necessary concerning long-term care facilities and services. You ask whether these state and federal duties allow the Ombudsman to "testify 'For' or 'Against' proposed legislation" at a legislative committee hearing or whether the Ombudsman may only "testify 'On'" legislation because of statutory ethics requirements applicable to state agencies and employees. [1] Request Letter at 1.

    We begin by considering the authority and duties of the Ombudsman and the Office under Texas law. Chapter 101A, subchapter F, of the Texas Human Resources Code governs the Office, TEX. HUM. RES. CODE §§ 101A.251-.264. The Department of Aging and Disability Services (the "Department") operates the Office. Id. § 101A.252; see also id. § 101A.001(2) (defining "Department" as the Department of Aging and Disability Services). The Office must "provide information to public agencies, legislators, and others that relates to the problems and concerns of elderly residents." Id. § 101A.261. Chapter 101A specifically requires the Office to "analyze and monitor the development and implementation of federal, state, and local laws, rules, regulations, and policies relating to long-term care facilities and services and shall recommend any changes the office considers necessary." Id. § 101A.260 (emphasis added). Another statute also requires the Office to make legislative recommendations when it prepares its annual report to the Governor and the presiding officer of each house of the Legislature:

            (a) The office shall prepare an annual report that contains:

                (1) information and findings relating to the problems and complaints of elderly residents; and

                (2) policy, regulatory, and legislative recommendations to solve the problems, resolve the complaints, and improve the quality of the elderly residents' care and lives.

Id. § 101A.262 (emphasis added). [2]

    In addition to these requirements, chapter 101A requires the Office and the Ombudsman program to "operate in cooperation with any regulatory agency funded and mandated by the Older Americans Act of 1965 (42 U.S.C. Section 3001 et seq.) and state statute." Id. § 101A.253 ("Role of Office"). Further, the chapter grants the Ombudsman and the Office all "powers and duties required by state and federal law." Id. § 101A.254. Thus, we next consider powers and duties required by federal law and incorporated into state law.

    Under the federal Older Americans Act (the "Act"), a state may obtain federal funding by establishing and operating "an Office of the State Long-Term Care Ombudsman office ... headed by ... the State Long-Term Care Ombudsman," to carry out a program meeting specified requirements. 42 U.S.C. § 3058g(a)(1)-(3). Under federal law, the Ombudsman has a duty to:

            (i) analyze, comment on, and monitor the development and implementation of Federal, State, and local laws, regulations, and other governmental policies and actions, that pertain to the health, safety, welfare, and rights of the residents, with respect to the adequacy of long-term care facilities and services in the State; [and]

            (ii) recommend any changes in such laws, regulations, policies, and actions as the Office determines to be appropriate[.]

Id. § 3058g(a)(3)(G)(i)-(ii). Federal regulations also require that policies and procedures for an ombudsman program enable a state ombudsman to independently recommend changes to the law without necessarily representing the position of the state agency that operates the ombudsman office (in Texas, the Department and the Office, respectively). 45 C.F.R. § 1324.11(e)(8); see also id. § 1324.13(a)(7)(i), (ii) (functions of Ombudsman). Moreover, "[s]uch procedures must exclude the Ombudsman and representatives of the Office from any state lobbying prohibitions to the extent that such requirements are inconsistent with [provisions of the Act governing state ombudsman offices]." Id. § 1324.11(e)(5)(i); see also 42 U.S.C. § 3058g, Pub. L. No. 102-375, § 712, 106 Stat. 1277.

    Considering these state and federal duties of the Ombudsman, we next review Texas laws related to lobbying. Section 556.006 of the Government Code, captioned "Legislative Lobbying," restricts a state agency from using "appropriated money to attempt to influence the passage or defeat of a legislative measure." TEX. GOV'T CODE § 556.006(a); see also id. § 556.008 (prohibiting a state agency from using "appropriated money to compensate a state officer or employee who violates" subsection 556.006(a)). Thus, in some circumstances, subsection 556.006(a) does not allow an agency representative to testify in favor of or against particular legislation at a legislative committee hearing. The Ombudsman's recommendation of a new law would be an "attempt to influence the passage or defeat of a legislative measure," which subsection 556.006(a) prohibits. Id. § 556.006(a). To the extent that subsection 556.006(a) prohibits the Ombudsman from performing her statutory duty to comment on the law and make recommendations, it conflicts with chapter 101A of the Human Resources Code and 42 U.S.C. § 3058g. Compare TEX. GOV'T CODE § 556.006(a), with TEX. HUM. RES. CODE §§ 101A.260, .262(a)(2), and 42 U.S.C. § 3058g(a)(3)(G)(i), (ii).

    Courts must harmonize statutes and give effect to each unless the statutes are irreconcilable. See TEX. GOV'T CODE §§ 311.025(b), .026(a). While subsection 556.006(a) generally prohibits lobbying, subsection (b) states further that it "does not prohibit a state officer or employee from using state resources to provide public information or to provide information responsive to a request." Id. § 556.006(b) (emphasis added). While no judicial opinion has considered the issue, a court would likely conclude that when a statute specifically requires an agency representative to comment on the law and make recommendations, the statute itself is a legislative request under subsection 556.006(b). That being the case, the Ombudsman's statutorily required comments and recommendations constitute responsive information that section 556.006(b) allows, and therefore the Ombudsman may provide such comments and recommendations at a legislative hearing without violating subsection (a). See Texans Uniting for Reform & Freedom v. Saenz, 319 S.W.3d 914, 930 (Tex. App.—Austin 2010, pet. denied) (concluding that the lobbying prohibition in section 556.006 did not apply to prohibit federal legislative advocacy in light of another statute specifically authorizing an agency to advocate for federal legislation on behalf of the State).

    Furthermore, when conflicting statutes cannot be reconciled, one of which is general and the other is specific, the specific statute usually prevails, although the general statute may prevail if it is the later enactment and manifests the intent that it prevail. See TEX. GOV'T CODE § 311.026(b); see also City of Waco v. Lopez, 259 S.W.3d 147, 153 (Tex. 2008) (stating "the principle that a specific statute will ordinarily prevail over a general statute when the two cannot be reconciled"). Subsection 556.006(a) of the Government Code applies generally to state agency officers and employees who attempt to influence the passage of legislation without regard to the subject or particular circumstances. See TEX. GOV'T CODE § 556.006(a). In contrast, chapter 101A of the Human Resources Code applies only to the Ombudsman and employees of the Office, requiring them to comment on and make recommendations only about laws relating to long-term care facilities and services. TEX. HUM. RES. CODE §§ 101A.260, .262(a)(2); see also 42 U.S.C. § 3058g. A court would likely conclude that these duties in the Human Resources Code are specific legislation, while the prohibition in section 556.006 of the Government Code is general.

    The Legislature enacted the prohibition in section 556.006 of the Government Code in 1997, and the legislation establishing the duties of the Office and the Ombudsman in 1989. [3] Nevertheless, nothing in the 1997 legislative enactment manifests the intent that the general prohibition against attempting to influence the passage or defeat of legislation prevails over the Ombudsman's specific statutory duties to comment and make recommendations concerning state law. Therefore, a court would likely conclude that the duties of the Office and the Ombudsman to comment and make recommendations under sections 101A.260 and 101A.262 of the Human Resources Code prevail as exceptions to the general prohibition in section 556.006 of the Government Code. See Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290, 297 (Tex. 2011) (stating the general rule that "a specific statutory provision prevails as an exception over a conflicting general provision"). Accordingly, the Ombudsman may register a position and testify for or against legislation pending before the Texas Legislature to the extent necessary to perform her state and federal duties. [4]

                                  SUMMARY

                   Chapter 101A of the Human Resources Code requires the State Long-Term Care Ombudsman to comment on and make recommendations about laws relating to long-term care facilities and services. Chapter 556 of the Government Code does not preclude the Ombudsman from performing her statutory duty to make such comments and recommendations. Accordingly, the State Long-Term Care Ombudsman may register a position and testify for or against legislation pending before the Texas Legislature to the extent necessary to perform her statutory duty.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee

[1] Letter from Honorable Richard Peña Raymond, Chair, House Comm. on Human Servs., to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 21, 2016), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] See, e.g., OFFICE OF THE STATE LONG-TERM CARE OMBUDSMAN, ANNUAL REPORT (Nov. 2014) (last visited Feb. 16, 2017).

[3] Compare Act of May 28, 1997, 75th Leg., R.S., ch. 1035, § 86, 1997 Tex. Gen. Laws 3845, 3866-67, amended by Act of May 29, 1999, 76th Leg., R.S., ch. 1498, § 1, 1999 Tex. Gen. Laws 5153, 5154-55, with Act of May 9, 1989, 71st Leg., R.S., ch. 159, § 1, 1989 Tex. Gen. Laws 538, 538-40, renumbered and amended by Act of March 26, 2015, 84th Leg., R.S., ch. 1, § 4.361, 2015 Tex. Gen. Laws 1, 828, 833 (adding chapter 101A, subchapter F).

[4] Because we resolve this issue on state-statutory-construction grounds, we need not address whether federal law imposes conditions with respect to lobbying that attach to federal funds received by the State and appropriated for the Office's use. See Tex. Att'y Gen. Op. No. JC-0161 (1999) (considering whether federal funds granted to the Texas Council for Developmental Disabilities fall within the reach of the State's lobbying prohibitions).