Untitled Texas Attorney General Opinion
KP-0136
| Tex. Att'y Gen. | Jul 2, 2017Background
- The State Long‑Term Care Ombudsman (the Ombudsman) heads the Office of the State Long‑Term Care Ombudsman, operated by the Department of Aging and Disability Services.
- Texas law (Hum. Res. Code ch. 101A) requires the Office to analyze and monitor laws, rules, and policies affecting long‑term care and to recommend changes; the Office must include legislative recommendations in its annual report.
- The federal Older Americans Act similarly requires an ombudsman to analyze, comment on, monitor, and recommend changes to federal, state, and local laws affecting long‑term care; federal regulations protect the Ombudsman’s independent ability to recommend changes and carve out certain state lobbying restrictions.
- Texas Government Code § 556.006 generally prohibits use of appropriated funds to influence passage or defeat of legislation, and prohibits compensating employees who do so.
- The question presented: whether the Ombudsman may register a position and testify for or against pending Texas legislation, or is limited to neutral "on" testimony by state ethics/lobbying restrictions.
Issues
| Issue | Requestor's Argument | State/AG's Argument | Held |
|---|---|---|---|
| Whether § 556.006 bars the Ombudsman from testifying for/against legislation | § 556.006 generally prohibits agency use of appropriated funds to influence legislation, so Ombudsman cannot testify for/against | Ombudsman duties under Tex. Hum. Res. Code ch. 101A and federal law require commenting and recommending changes; those specific duties qualify as permitted responsive/public information | The Ombudsman may register a position and testify for or against legislation to the extent necessary to perform statutory duties |
| Whether federal ombudsman authorities displace state lobbying prohibitions | N/A (concern that state law prohibits advocacy regardless of federal duties) | Federal law and regs require independent recommendations and exclude ombudsmen from inconsistent state lobbying prohibitions to the extent of conflict | Federal duties support state Ombudsman’s ability to advocate; state construction resolves the conflict without deciding preemption |
| Whether general lobbying prohibition or specific ombudsman statute controls when conflict exists | General prohibition should apply broadly to agencies | Specific provisions in ch. 101A (enacted earlier) are specific to Ombudsman duties and therefore control as an exception to the general prohibition | Specific Ombudsman duties prevail over general § 556.006 prohibition; no legislative manifestation that § 556.006 should override ch. 101A |
| Scope of permitted testimony when duties conflict with lobbying law | Testimony in favor/against is barred entirely by § 556.006 | Testimony that is statutorily required (comments/recommendations responsive to legislative request) is permitted under § 556.006(b) and as a specific statutory exception | Ombudsman may provide comments/recommendations and register positions to the extent necessary to perform statutory duties; limited to that scope |
Key Cases Cited
- Texans Uniting for Reform & Freedom v. Saenz, 319 S.W.3d 914 (Tex. App.—Austin 2010) (construing § 556.006 in light of another statute authorizing agency advocacy)
- City of Waco v. Lopez, 259 S.W.3d 147 (Tex. 2008) (principle that a specific statute ordinarily prevails over a general statute when irreconcilable)
- Jackson v. State Office of Admin. Hearings, 351 S.W.3d 290 (Tex. 2011) (reaffirming specific‑over‑general statutory construction rule)