Untitled Texas Attorney General Opinion ( 2005 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
November 18: 2005
The Honorable Leticia Van de Putte, R.Ph. Opinion No. GA-0376
Chair, Committee on Veteran Affairs
and Military Installations Re: Whether the Texas Workforce Commission
Texas State Senate is prohibited from using block grants to fund
Post Office Box 12068 programs listed under section 302.062(g) of the
Austin, Texas 7871 l-2068 Labor Code (RQ-0347-GA)
Dear Senator Van de Putte:
You ask whether the Texas Workforce Commission (the ‘Commission”) is prohibited from
using block grants to fund programs listed under section 302.062(g) of the Labor Code.’
The legislature created the Commission in 1995 to administer the state’s unemployment
compensation system and to “operate an integrated workforce development system in this state: in
particular through the consolidation of job training, employment, and employment related
educational programs available in this state.” TEX. LAB. CODE ANN. 5 301.001(a) (Vernon Supp.
2005).’ Chapter 302 of the Labor Code, which governs the Commission’s workforce development
authority, requires the Commission’s executive director to consolidate workforce development
programs under the Commission, to implement workforce training and services policies and
programs, and to contract with local workforce development boards for program planning and
service delivery. See id. 5 302.002(a)(l), (7), (9). Section 302.021 ofthe Labor Code consolidates
a variety of specific state and federal employment proyams under the Commission’s authority. See
id. § 302021(a).
Under chapter2308 ofthe Government Code, local workforce boards may be created by local
elected officials. See TEX. GOV’T CODE ANN. 5 2308.253 (Vernon 2000). A board “is directly
responsible for the operational planning and administration of all workforce training and services
funded through the [Commission] to the local area.” Id. 5 2308.302(b). In particular, a board is
required to develop a local workforce development plan, see id. 5 2308,303(a)(3) (Vernon Supp.
‘See Letterfrom Honorable Leticia Van de Putte, R.Ph., Chair, Committee on Veteran Affairs and Military
Installations, Texas State Senate, to Honorable Greg Abhott, Texas Attorney General (May 20, 2005) (on file with
Opinion Committee, also availahk nf http:/i~~~~,.oag.state.tx.us) [hereinafter Request Letter].
‘Added by .Act of May 26, 1995,74tb Leg., RX, ch. 655,$ 11.02(b), 1995 Tex. Gen. Laws 3543,35X I. This
bill abolished the Texas Employment Commission; which had administered some of the proprams that wcrc consolidated
under tire Commission See in. $5 11.02; .75(a) at 3581, 3621.22.
‘he Honorable Leticja Van de Putte, R.Ph. Page 2 (GA-037G)
2005): and must contract with entities to provide services for persons seeking employment in the
local workforce development area; see id. 5 2308.303(b). With a waiver from the Commission, a
board may provide services directly. Sc?eid.; XC triso id 5 2308.264. A board moist establish career
development centers to provide access to information and services a\;aiiable in the workfol-cc
development area. See ii/. $5 2308,303(a)(5) (Vemon Supp. ZOOS), 2308.312 (Vernon 2000).
Subchapter D of chapter 302 of’the Labor Code provides for the allocation of workforce
development funds and a block grant program for workforce development. With respect to the latter,
section 302.062, enacted in 1995 with the Commission’s creation,i generally requires the
Commission to provide funds for workforce training and employment services to local workforce
areas through block grants. Section 302.062(a) establishes the general block grant funding
requirement and permits the Commission to retain administrative costs not to exceed five percent:
Effective July 1: 1996, the commission shall provide to the
local workforce development areas in which local workforce
development boards have been certified and local plans approved by
the governor, through a block grant process, funds available to the
commission for workforce training and employment services, unless
superseded by federal law. Administrativecosts under this subsection
may not exceed five percent ofthe total amount of funds available to
the commission for block grants for workforce training and services.
TEX. LAB. CODE ANN. 5 302.062(a) (Vernon Supp. 2005). Section 302.062(b)-(f) governs the
allocation of funds by the Commission to different regions and between local workforce
development hoards and other entities providing services within an area. See id. 5 302.062(b)-(fl.
In addition, section 302.023 provides that the executive director of the Commission “shall delegate
all or part of the administration of a program listed under section 302.021 that is eligible for block
grant funding under section 302.062 to a local workforce development board in an area or to
another appropriate state or local entity in an area” with no local workforce development hoard. Id.
5 302.023 (Vernon 1996).
Section 302.062(g), which you ask about, provides as follows:
(g) Blockgnmt funding under this section does not apply to:
(1) the work and family policies program under Chapter 8 1;
(2) aprogram under the skills development fund created under
Chapter 303;
(3) the job counseling program for displaced homemakers
under Chapter 304;
‘Seeid. 4 11.03, at 35x9-94
The Honorable Leticia Van de Putte, R.Ph. Page 3 ((2-0376)
(4) the Communities In Schools program under Subchapter E,
Chapter 33, Education Code, to the extent that funds are available to
the commission for that program:
(5) the reintegration of offenders program under Chapter 306;
(6) apprenticeship programs under- Chapter 133, Education
Code;
(7) the continuity of care program under Section 501.095,
Government Code;
(8) employment programs under Chapter 31, Human
Resources Code;
(9) the senior citizens employment program under Chapter
101, Human Resources Code;
(10) the programs described by Section 302,021(b)(2);
(11) the community service program under the National and
Community Service Act of 1990 (42 U.S.C. Section 12501 et sey.);
(12) the trade adjustment assistance program under Part 2,
Subchapter II, Trade Act of 1974 (19 U.S.C. Section 2271 et seq.);
(13) the programs to enhance the employment opportunities of
veterans; and
(14) the functions of the State Occupational Information
Coordinating Committee.
Id. 5 302.062(g) (Vernon Supp. 2005) (emphasis added).”
You note that the Commission “has block granted” several programs listed in section
302.062(g)’ and ask whether this is appropriate. Request Letter, stlpra note 1, at 1. We gather that
you believe that section 302.062(g) may prohibit the Commission from funding these programs by
‘House Bill 2604 from the Seventy-ninth Legislature amended section 302.062(g)(iO) to change “Section
302,021(b)(3)” to “Section 302,021(b)(2),” to conform to an amendment to section 302.021(b), which renumbered
section 302021(b)(3). See Act of May 29,2005, 79th Leg., R.S., ch. 1294, $5 2-3, 2005 Tex. Sex. Law Serv. 40X8,
4089 (effective Sept. 1; 2005).
‘See, e.g., 40 Tex. ADMIN. CODE $5 800.65(a) (2004) (“Funds available to the Commission to provide Project
RIO services shall be allocated to workforce areas using a need-based formula, as set forth in subsection (b) of this
section.“), 800.66(aj (“Funds available to the Commission to provide Trade Act Services shall be allocated to workforce
arcas using a need-based formula, as set forth in subsection(b) below”).
The Honorable Leticia Van de Putte, R.Ph Page 4 (GA-0376)
block grants, requiring the Commission to contract for or- provide the program services directly as
opposed to distributing funds to local workforce development hoards to contract for or provide
program set-vices.
In construing this statute, we must give effect to the legislature’s intent. See TE?~.Gov’~
CODEANN. $4 31 1.021, ,023 (Vernon 2005); Alherrsorr ‘,s,I~zc. V. &?;iricii~ir~ 984 S.W.2d 958: 960
(Tex. 1999); h4iteheZl Emr~ Corp. I:. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997). To do so, we
must construe it according to its plain language. See In ye Can&s, 52 S.W.3d 698,702 (Tex. 2001);
RepublicBunk Dullus, Iv’..4.I’. Interkal, Inc., 691 S.W.2d 605, 607-08 (Tex. 1985). We must also
construe section 302.062(g) in context, considering section 302.062 as a whole and in light ofother
statutes that govern the Commission and the specific programs listed in section 302.062(g)(l)-(14).
See TEX. GOV’T CODE ANN. 9 3 11 ,011 (a) (Vernon 2005) (words and phrases to be read in context);
Helena Clrenz. Co. I’. @U&s, 47 S.W.3d 486, 493 (Tex. 2001) (“[Wje must always consider the
statute as a whole rather than its isolated provisions. We should not give one provision a
meaning out of harmony or inconsistent with other provisions, although it might he susceptible to
such a construction standing alone.“).
On its face, section 302.062(g) does not prohibit the Commission from using block grant
funding to implement the listed programs. When the legislature intends to prohibit an entity from
engaging in certain conduct, it generally uses the phrase “may not” or “shall not.” See TEX. GOV’T
CODEANN. 5 311.016(5) (Vernon 2005) (defining certain terms and phrases) (Code Construction
Act). By contrast, section 302.062(g) states that “[hIlock grant funding under this section does not
apples to” the listed programs. See TEX. LAB. CODE ANN. 5 302.062(g) (Vernon Supp. 2005)
(emphasis added). Moreover, in using the phrase “under this section,” see id., section 302.062(g)
indicates that its limitation operates only with respect to section 302.062 and not with respect to
other law. Section 302.062(a) generally requires the Commission to distribute funds available to the
Commission for workforce training through block grant funding by a date certain and section
302.062(b)-(f) establishes specific allocation requirements governing that block grant funding.
Section 302.062(g) exempts the listed programs from the general block grant funding requirement
and the specific allocation requirements in section 302.062(a)-(f).
The conclusion that section 302.062(g) does not establish a prohibition but rather creates an
exemption to mandatory block grant funding under section 302.062(a)-(f) is also supported by an
uncoditied provision in House Bill 1863, the 1995 hill that created the Commission and enacted
section 302.062. Section 11.77 of House Bill 1863 required the Commission’s executive director
to report to the legislature and the governor “the results of an analysis conducted by [the]
commission as to whether block grant funding under Section 302.062 should be extended to the
programs exempted from block grant funding under Section (g) of that section.“” This provision
indicates that the legislature intended section 302.062(g) to exempt the listed programs from
mandatory block grant funding under section 302.062(a), which was to go into effect July 1, 1996,
but did not intend to foreclose block grants as a funding mechanism for those programs.
“See Act of May 26. 1995, 74th Leg., R.S., ~11.658, 5 11.77, 1995 Tex. Gen. 1,aws 3543, 3623 (emphasis
added).
The Honorable Leticia \‘an de Putte, R.Ph. Page 5 (GA-0376)
On the basis of section 302.062’s express language and section 11.77 of House Bill 1863.
\ve conclude that section 302.062(g) does not prohibit block grant funding but rather exempts the
programs listed under section 302.062(g) from mandatory block grant fimding under section
302.062(a)-(i). However: this conclusion does not resolve whether the Commission is permitted to
fund the section 302.062(g) programs with block grants. The fourteen programs listed in section
302.062(g) are governed by other state statutes, some of which have been amended since 1995. as
well as federal law. In addition, chapter 302 generally requires the Commission to consolidate
workforce development programs and to contract with local boards for program planning and
delivery. See, e.g., id. 5 302.002(a)(l), (9) ( re,quiring the executive director to consolidate programs
“to achieve efficient and effective delivery of services” and to “contract with local workforce
development boards for program planning and service delivery”); see also TEX. GOV’T CODEA~vN.
5 2308.302 (Vernon 2000) (providing that a local board “is directly responsible for the
operational planning and administration of all workforce training and services funded through the
[Commission] to the local area”). Whether the Commission may fund a particular program listed
in section 302.062(g) by block grants to local workforce areas must be determined on the basis of
laws governing the particular program, in light of the Commission’s general duty to consolidate
programs and to ensure that workforce development services are planned and delivered at the local
level.
For example, section 302.062(g)(S) lists “employment programs under Chapter 3 1, Human
Resources Code.” TEX. L.~B.CODEANN. 5 302.062(g)(8) (V ernon Supp. 2005). Section 302.065,
enacted in 2003, requires the Commission and local workforce boards to integrate the administration
of certain federal block grant programs, including “employment programs under Chapter!] 31 [of
the] Human Resources Code” “[t] o st reamline the delivery of services provided in local career
development centers,” Id. 5 302.065’; see also id. 4 302.0026.’ This provision clearly contemplates
that chapter 3 1 services will be provided at local career development centers by center caseworkers.
See id. 5 302.065. The distribution of chapter 31 program funds by the Commission to local areas
to provide services appears to be consistent with the Commission’s general authority and the
statutory mandate that these services be provided at the local level in an integrated manner.
Similarly, section 302,062(g)(5) lists “the reintegration of offenders program under Chapter
306 [Project RIO],” id. 5 302,062(g)(5), a project administered by the Commission, see id. 5 306.003
(Vernon 1996). Section 2308.312 of the Government Code requires a career development center
established by a local board to provide a variety of services, including “job training and employment
assistance for persons formerly sentenced to the institutional division or statejail division, provided
in cooperation with Project RIO.” TEX. GOV’T CODE ANN. § 2308.312(c)(7) (Vernon 2000).
Chapter 306 does not prohibit the Commission from distributing Project Rio funds to local areas by
block grants and allocating funds in this manner is entirely consistent with the Commission’s general
authority and the express mandate that Project RIO services be provided at the local level by career
development centers.
‘Added by Act of June 1, 2003, 78th Leg., R.S., ch. 817. $ 4.08, 2003 Tex. Gen. Laws 2813, 2523.24
‘Added by Act of June 1, 2003, 78th Le& R.S.> ch. 1983 3 2.93(a), 2003 Tex. Cm. Laws 611; h87.
The Honorable Leticia Van de Putte, R.Ph. - Page 6 (GA-0376)
By contrast, section 302.062(g)(3) lists “the job counseling program for displaced
homemakers under chapter 304 [of the Labor Code].” TEX. L,AB. CODE ANN. fi 302.062(g)(3)
(Vernon Supp. 2005). Section 304.003 of the Labor Code requires the Commission to use its
personnel, services, facilities; and equipment to operate this program. SW iii. 5 304.003 (Vernon
1996). Because this statute expressly requires the Commission to provide these serviws directly.
the Commission may not implement the program by making block grants to local workforce
developmentboards orotherserviceproviders. Similarly, section 302.062&)(13) lists “theprograms
to enhance the employment opportunities of veterans.” Iii. 5 302.062(&(13) (Vernon Supp. 2005).
Recently, the legislature transferred veterans employment programs from the Commission to the
Veterans Commission. See id. $5 302.014, .021(b). The new law states that “services provided
under those programs must be provided by state employees,” effectively foreclosing block grant
funding. See id. 5 302.014(d).
In sum, section 302.062(g) exempts certain programs from the mandatory section 302.062(a)
block grant funding requirement, but does not preclude the Commission from funding the programs
by block grants. Whether the Commission may fund a particular program listed in section
302.062(g) by block grants must be determined on the basis of the laws governing the particular
program, in light of the Commission’s general duty to consolidate programs and to ensure that
workforw development sewices are planned and delivered at the local level.
The Honorable Leticia Van de Putte, R.Ph. - Page 7 (GA-0376)
S U WI IV14 R Y
Section 302.062(a) of the Labor Code generally requires
the Texas Workforce Commission to fund workforce training
and employment services with block grants to local areas. Se&on
302.062(g) of the Labor Code exempts certain programs from that
mandatory requirement but does not prohibit the Commission from
funding the listed programs by distributing block grants to local areas.
Whether the Commission may fund a particular program listed in
section 302.062(g) by block grants to local workforce areas must be
determined on the basis of laws governing the particular program, in
light of the Commission’s general duty to consolidate programs and
to ensure that workforce development services are planned and
delivered at the local level.
BARRY R. MCBEE
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General, Opinion Committee