THE ATTORNEY GENERAL
OF TEXAS
January 11, 1990
Robert Bernstein, M.D., F.A.C.P. Opinion No. JM-1135
Commissioner
Texas Department of Health Re: Construction of the
1100 West 49th Street Human Immunodeficiency
Austin, Texas 78756-3199 Virus Services Act, arti-
cle 4419b-4, V.T.C.S.
(RQ-1886)
Dear Dr. Bernstein:
you ask three questions regarding the interpretation of
section 2.03(h) of the Human Immunodeficiency Virus Services
Act (hereinafter the act). V.T.C.S. art. 441913-4, et sea.
Before we analyze that particular provision, we will briefly
examine the act as a whole.
Article 1 of the act includes definitions and desig-
nates the Texas Department of Health (hereinafter the
department) as "the primary resource for HIV education" in
the state. Article 2 requires the department to establish
and administer a state grant program for HIV education,
prevention, risk reduction programs, treatment, health, and
social service programs for persons with HIV infection.
Article 3 establishes an HIV medication program in the
department. Article 4 relates to HIV testing and coun-
seling. Article 5 establishes an education program for
state employees and requires state agencies to develop
workplace guidelines concerning persons who have AIDS or HIV
infection. Article 6 requires the Texas Department of Human
Services to establish demonstration projects for providing
nursing care to persons with AIDS or HIV infection. Article
4419b-5, V.T.C.S., authorizes the department to develop a
model education program for school-age children regarding
sexual issues and AIDS. Article 4419b-6, V.T.C.S., esta-
blishes the Texas Human Immunodeficiency Virus Medication
Program under the Texas Health and Human Services Co-
ordinating Council.
The focus of your inquiry is article 2 of the act,
which establishes a state grant program. Section 2.01
of the act designates the department to establish and
administer the program. Section 2.02(a) requires the
p. 5977
Dr. Robert Bernstein - Page 2 (JM-1135)
department to establish application procedures and eligi-
bility guidelines for the state grants. Section 2.03
enables the board to adopt rules relating to the services
furnished under the program, the priorities of the program,
and a process for resolving disputes between the department
and a program receiving funds. While only a third of the
available funds are to be used for education, prevention
and risk reduction, V.T.C.S. art. 441913-4, 5 2.03(g), the
department is to give special consideration to organizations
that serve persons under 18 years of age. J& 5 2.03(d).
Section 2.03(f) requires education grants to be distributed
so as not to duplicate existing programs and to provide
education services to "populations engaging in behaviors
conducive to HIV transmission." Section 2.04 requires
programs funded under article 2 to use information and
educational materials that are consistent with the current
findings of the United States Public Health Service. The
department is to evaluate funded programs, is, 5 2.06, and
to require funded programs to submit records specified by
the department. L S 2.08. The department is also
required to review financial records of programs funded
under this article. re, 5 2.09. Apparently the department
developed the guidelines,1 a copy of which was submitted
with your letter, pursuant to section 2.02(a).
Section 2.02(a) of the act grants the department
express authority to develop eligibility guidelines for
grant applicants. However, an administrative agency is
bound to exercise its powers consistently with the statute
that grants them. S .-e,a Railroad Comm#n v. Shell Oil
Co., 161 S.W.2d 1022ee(Tex.';942) ; Gulf Coast Water Co. v.
Gtwriaht, 160 S.W.2d 269 (Tex. Civ. App. - Galveston 1942,
writ ref‘d w.o.m.).
Your questions concern the department's responsibility
for the grant program established in article 2. Your first
question reads as follows:
What is the proper construction of Subsection
2.03(h)?
1. We understand that the guidelines, now identified
as being in "draft form," have not been formally adopted or
published in the Texas Register pursuant to the
Administrative Procedure and Texas Register Act, article
6252-13a. V.T.C.S.
p. 5978
Dr. Robert Bernstein - Page 3 (JM-1135)
Section 2.03(h) reads as follows:
Grants may not be awarded to an entity or
community organization that advocates or
promotes conduct that violates state law.
This subsection does not prohibit the award
of a grant to an entity or community organi-
zation that provides accurate information
about ways to reduce the risk of exposure to
or transmission of HIV.
The department's proposed guidelines first quote sec-
tion 2.03(h) and follow with.the department's interpretation
of the subsection as follows:
This language has been interpreted by the
Texas Department of Health to mean that an
entity or community organization is not
eligible to receive a grant under Article 2
of the bill if the entity, organization or
any person employed by or volunteering for
the entity or organization acts directly or
indirectly within the scope of his or her
activities for the organization (including
the person's mere presence upon the premises
of the entity or organization)2 to influence
legislation by encouraging, supporting or
actively recommending the modification or
repeal [of] state laws regulating or pro-
hibiting types of personal conduct recognized
by medical experts to transmit HIV infection.
The department further interprets the
language 'state laws regulating or prohi-
biting types of personal conduct recognized
by medical experts to transmit HIV infection'
to include at least:
1. Sec. 21.06 of the Penal Code, pro-
hibiting homosexual conduct;'
2. This is only one of many provisions of the guide-
lines that raise serious constitutional issues. Inasmuch as
we determine that the proposed guidelines are completely
outside the authority granted by the statute, we need not
address the constitutional concerns of freedom of
association, freedom of speech, and freedom to petition the
government.
p. 5979
Dr. Robert Bernstein - Page 4 (JM-1135)
2. Sets . 43.02 and 43.04 of the Penal
Code, relating to prostitution and the
promotion of prostitution:
3. Chapters 481 and 483 of the Health and
Safety Code, regulating the use of controlled
substances, simulated controlled substances,
and dangerous drugs.
The department more specifically interprets the language
"influence legislation" to prohibit:
1) Any attempt to influence any legislation
through a move to affect the opinions of the
general public or any segment thereof; and
2) Any attempt to influence any legislation
through communication with any member or
employee of a legislative body or with any
government official or employee who may
participate in the formulation of legisla-
tion.
3) The expenditure of any amount to in-
fluence the selection, nomination, election,
or appointment of any individual to any
federal, state, or local public office in a
political organization, or election of
Presidential or Vice Presidential electors
(whether or not such individuals or electors
are selected, nominated, elected, or
appointed).
In your letter, YOU indicate that the department
developed its guidelines based on its understanding that the
legislature intended that grant funds not be awarded to
organizations that lobby for the repeal of certain criminal
statutes. You indicate that this understanding was grounded
in comments made by the state representative who originally
proposed the language in question here. While we think that
the statute is clear on its face and needs no further con-
struction, we reiterate the rule that legislative intent is
not to be discovered in the expressed intent of one member
of the legislature. Commissioners' Court of El Paso County
V. El Paso Countv Sheriff's DeDUtiSS AssIn., 620 S.W.2d 900
(Tex. Civ. App. - El Paso 1981, writ ref'd n.r.e.). If the
legislature intended to disallow grants to organizations
that lobby, such intent is not expressed in the law.
p. 5980
Dr. Robert Bernstein - Page 5 (JM-1135)
This statute is clear on its face. The act disallows
the awarding of grants to entities that advocate or promote
conduct that violates state law. When the language of a
statute is clear and unambiguous, the plain language is
controlling. Seem Sutherland, Statutory Construc-
tion S 46.01 8t sea, (4th ea.). Black's Law Dictionary
defines "advocate" as "To speak in favor of or defend by
argument. To support, vindicate, or recommend publicly.l*
Black's Law Dictionary 51 (5th ed. 1979). The dictionary
defines "promote" as "To contribute to growth, enlargement,
or prosperity of: to forward: to further: to encourage; to
advance." & at 1093.
The use of controlled' substances, for example, is
conduct that violates state law. For one to advocate or
promote the use of controlled substances, one would
necessarily defend their use or encourage others to use
them. While lobbying for the repeal or amendment of the
Controlled Substances Act is a type of advocacy, it is not
advocacy of conduct prohibited by law. A lobbyist may
advocate a change in the law by encouraging various
legislative actions. For example he may seek the introduc-
tion of a bill into the legislature, or he may encourage a
particular vote, or he may urge an amendment to a bill;
however, none of these acts violates state law.
Lobbying activity, identified in the proposed guide-
lines as activity that disqualifies an organization from
receiving grant funds, is a peculiarly protected form of
speech. It is, first of all, speech protected by the United
States and the Texas Constitutions. U.S. Const. amend. I;
Tex. Const. art. I, 5 8; Attorney General opinion H-18
(1973). Secondly, it is speech that is regulated in that
persons who receive or expend funds to influence legislation
must disclose the amounts received and expended. See
aenerallv Gov't Code ch. 305. In adopting that regulatory
statute, the legislature recognized the importance of
lobbying activity to democratic institutions as follows:
The operation of responsible democratic
government requires that the people be
afforded the fullest opportunity to petition
their government for the redress of grie-
vances and to express freely their opinions
on legislation, pending executive actions,
and current issues to individual members of
the legislature, legislative committees,
state agencies, and members of the executive
branch.
p. 5981
,
Dr. Robert Bernstein - Page 6 (JM-1135)
Gov't Code 5 305.001.
Furthermore, the legislature has elsewhere prohibited
the expenditure of appropriated funds for lobbying activity.
The current Appropriations Act prohibits the use of funds
that are appropriated in the act for influencing the passage
or defeat of any legislative measure. Acts 1989, 71st Leg.,
ch. 1263, art. V, S 5, at 5760.
The distinction between lobbying activity and advocacy
of conduct that violates state law is illustrated by recent
examples of public officials' advocating changes in criminal
statutes. Some public officials concerned about the drug
problem in this country have recently advocated the repeal
of criminal penalties attached to the use of controlled
substances. Similarly, a brief submitted pursuant to your
letter describes the testimony of a former chairman of the
Texas Board of Health and Chief Administrator of Parkland
Hospital in Dallas before the Texas House of Representatives
Appropriations Committee in 1987. The chairman, according
to the brief, advocated the repeal of section 21.06 of the
Penal Code to encourage homosexuals to voluntarily seek HIV
testing and counseling. Under the department's interpreta-
tion of section 2.03(h),~ those officials would be ineligible
to receive education grants.
On its face, subsection 2.03(h) only prohibits the
grant of funds to persons who advocate or promote illegal
conduct. This language does not authorize the broad
restrictions reflected in the department#s proposed
guidelines. The department's interpretation that lobbying
activity disqualifies grant applicants is without statutory
support.
Your second question is based on the premise that
section 2.03(h) precludes the award of grants to entities
that lobby for revision or repeal of criminal statutes.
Having determined that such an interpretation is without
merit, it is unnecessary to answer your second question.
Finally, you ask:
Does Subsection 2.03(h), or any other pro-
vision of S.B. No. 959 [the act] require the
department to exclude from consideration [for
a grant] an organization that has homosexuals
among its officers, board, general member-
ship, paid staff or volunteers, merely
because the individuals are homosexuals?
p. 5982
Dr. Robert Bernstein - Page 7 (JM-1135)
Neither section 2.03(h) nor any other provision of the
act requires that result. The only statutory basis in
section 2.03(h) to deny a grant to an organization is a
finding by the department that the organization advocates or
promotes illegal conduct. The composition of an organiza-
tion's membership or board is not determinative of the
organization's eligibility for a grant.
SUMMARY
Section 2.03(h) of the Human Immuno-
deficiency Virus Services Act prohibits the
award of a state grant to an entity or
organization that advocates or promotes
conduct that violates state law. Lobbying is
not conduct that violates state law. The
composition of an organization's membership
or board is not determinative of the
organization's eligibility for a grant.
Ll lNalx%
Very truly yo
A
JIM MATTOX
Attorney General of Texas
NARYKELLER
First Assistant Attorney General
LOU MCCR&RY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAELEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Karen C. Gladney
Assistant Attorney General
P. 5983