Untitled Texas Attorney General Opinion ( 2000 )

March 1,200O
Mr. Charles W. Heald, P.E. Opinion No. K-0189
Executive Director
Texas Department of Transportation Re: Whether the Texas Department of Transporta-
125 East 11th Street tion is authorized to establish the Statewide
Austin, Texas 78701-2483 Transportation Policy Committee and the Bicycle
Advisory Committee as provided in title 43, section
1.85(a)(2) and (8) of the Texas Administrative Code
(RQ-0126-JC)
Dear Mr. Heald:
You ask whether the Texas Department of Transportation (the “Department”) is authorized
to establish the Statewide Transportation Policy Committee and the Bicycle Advisory Committee
in light of a 1998 letter opinion of this office, which you read to construe chapter 2110 of the
Government Code to provide that a state agency may not establish an advisory committee unless
expressly authorized to do so by state law. We conclude that chapter 2110 has no bearing on
whether a state agency is authorized to create an advisory committee and that a state agency’s
authority to create an advisory committee will depend upon statutes specifically governing the
agency and may be express or implied. We also conclude that statutes requiring the Department to
obtain public input on statewide transportation planning and bicycle issues provide implied authority
for the Department to establish the two committees.
The Department has promulgated a rule establishing a Statewide Transportation Policy
Committee and a Bicycle Advisory Committee. See 43 TEX. ADMIN. CODE 5 1.85(a)(2), (8) (1999).
We understand from your query that the Department does not have express statutory authority to
establish either committee. In addition, the Department did not establish either committee pursuant
to the Administrative Procedure Act provision that generally authorizes state agencies to appoint
committees of experts, interested persons, or representatives of the public to advise them about
contemplated mlemaking. See TEX. GOV’T CODE ANN. 5 2001.031 (Vernon 2000). We also
understand that the committees at issue are purely advisory. Our opinion is limited to purely
advisory bodies; we do not address the authority of a state agency to create a committee to which
it will delegate authority.
You are concerned about the Department’s authority to establish the committees in light of
Attorney General Letter Opinion 98-009. See Tex. Att’y Gen. LO-98-009. That letter opinion
addressed the authority of the Department of Licensing and Regulation to create an advisory
Mr. Charles W. Heald, P.E. - Page 2 (X-0189)
committee to aid in its regulation of the staff leasing services industry, and concluded that the
Department lacked the authority to create the committee. You are concerned that the letter opinion
may suggest that chapter 2 110 of the Government Code provides that a state agency may not create
an advisory committee unless it is expressly authorized to do so by statute.
We have reviewed chapter 2110 and its legislative history. As we explain below, the chapter
is designed to increase the effectiveness of advisory committees and to limit their cost to the state.
No provision in chapter 2110 addresses whether a state agency may create an advisory committee.
Because the chapter is concerned with the cost and overall effectiveness of advisory committees
rather than the basis for their creation, we conclude that it is not relevant to whether a state agency
may create an advisory committee.
Chapter 2110 begins with this definition:
In this chapter, “advisory committee” means a committee,
council, commission, task force, or other entity in the executive
branch of state government that:
(1) is not a state agency;
(2) is created by or under state law; and
(3) has as its primary function advising a state agency.
TEX. GOV’T CODE ANN. § 2110.001 (Vernon 2000). This provision defines the term “advisory
committee” for purposes ofthe chapter, thereby establishing the chapter’s scope. We do not believe
that this definition imposes limitations on the creation of such committees.
The remaining provisions of chapter 2110 pertain to the organization and effectiveness of
advisory committees and their cost to the state. Section 2110.002 provides that an advisory
committee must be composed of a reasonable number of members, not to exceed twenty-four. Id.
§ 2110.002(a). In addition, the composition of a committee must be balanced, with members
representing the various business and consumer interests affected by the agency. Id. These
limitations do not apply if the committee must be composed in a certain manner under federal law
or for federal funding purposes. Id. $ 2110.002(b). Furthermore, unless provided by other law, a
committee must select a presiding officer from among its members to preside over the committee
and report to the state agency. Id. 5 2110.003.
Other provisions require a state agency that is advised by an advisory committee to adopt
rules that state the committee’s purpose and describe the committee’s task and the manner in which
it will report to the agency. Id. $ 2110.005. In addition, a state agency is required to annually
evaluate its committees’ work, usefulness, and costs, id. § 2110.006, and must report this
Mr. Charles W. Heald, P.E. - Page 3 (X-0189)
information to the Legislative Budget Board biennially in connection with the agency’s
appropriation request, id. 4 2110.007.
Chapter 2110 imposes limitations on the reimbursement of advisory committee members’
expenses. The manner and amount of reimbursement for expenses “may be prescribed only by
the General Appropriations Act” or “through the budget execution process if the advisory
committee is created after it is practicable to address the existence of the committee in the General
Appropriations Act.” Id. 5 2110.004(a). If a state agency determines the expenses of committee
members should be reimbursed, it must request authority to do so through the appropriations or
budget execution process. Id. 5 2110.004(b).
Finally, chapter 2110 addresses the effectiveness and expense of advisory committees by
limiting their duration. Unless a statute establishes the duration of an advisory committee, a state
agency must establish by rule a date on which the committee will be automatically abolished. Id.
5 2110.008(a). In the absence of such a rule, a committee is automatically abolished on the
fourth anniversary of the date of its creation. Id. 5 2110.008(b). A state agency may continue the
existence of a committee after its date of abolition only by the affirmative vote of its governing body.
Id. 5 2110.008(a).
In short, chapter 2110 is concerned with the cost and overall effectiveness of advisory
committees and does not address whether a state agency may create an advisory committee. This
conclusion is supported by its legislative history. The statutory predecessor to chapter 2110, former
article 6252-33, was enacted in 1993 by the Seventy-third Legislature as Senate Bill 383. See Act
ofMay 23, 1993,73d Leg., ch. 3981993 Tex. Gen. Laws 1696.’ Bill analyses state that Senate Bill
383 was intended to enact a recommendation of the Office of the Comptroller resulting from that
office’s performance review of state government. See SENATE COMM. ON FINANCE, BILL ANALYSIS,
Tex. S.B. 383, 73d Leg., R.S. (1993) (stating as background that Comptroller had made a number
of“recommendations for making state government more efficient and less costly to Texas taxpayers”
and the Comptroller’s report “Against the Grain recommends establishing statutory guidelines for
state agency advisory committees”); see also HOUSE COMM. ON STATE AFFAIRS, BILL ANALYSIS,
Tex. Comm. Substitute S.B. 383, 73d Leg., R.S. (1993) ( same). The report referenced in the
legislative history recommended legislation to address the cost, fiscal accountability, and overall
effectiveness of advisory committees and to abolish certain committees. The report did not address
the authority of state agencies to create advisory committees or recommend that that authority be
circumscribed. See TEXAS COMPTROLLEROF PUBLICACCOUNTS, TEXAS PERFORMANCEREVIEW,
2 AGAINST THE GRAIN: HIGH-QUALITY LOW-COST GOVERNMENT FOR TEXAS, at l-3 (1993).
To the extent Attorney General Letter Opinion 98-009 may be read to construe chapter 2110
to provide that a state agency may not create an advisory committee absent express statutory
‘Formerarticle6252-33 was repealedandcodifiedin theGovernmentCode in 1997. See Act ofMay 8,1997,
75th Leg., R.S., ch. 165, $ 16.01(a) (enactingchapter2110 of the GovernmentCode and repealingarticle6252-33,
RevisedCivil Statutes),1997 Tex. Gen. Laws 327,471.
Mr. Charles W. Heald, P.E. - Page 4 (JC-0189)
authority, it is modified. We do not revisit the letter opinion’s conclusion regarding the Department
of Licensing and Regulation’s authority to create an advisory committee to aid in its regulation of
the staff leasing services industry.
You ask not only about Letter Opinion 98-009 but also more specifically about the authority
of the Department to establish the Statewide Transportation Policy Committee and the Bicycle
Advisory Committee. We review a state agency rule establishing an advisory committee just as we
would any other agency rule or action. We believe that a state agency’s authority to create an
advisory committee will depend upon statutes specifically governing the agency and may be express
or implied. Section 2001.031 of the Government Code, for example, generally permits state
agencies to appoint advisory committees to advise them about contemplated rulemaking. See TEX.
GOV’T CODE ANN. § 2001.031 (Vernon 2000) (Administrative Procedure Act). Other statutes may
specifically authorize a state agency to create committees to advise it on particular matters. Because
no statute expressly authorizes the Department to create either committee, we must consider whether
the Department has the implied authority to create them.
State agencies may exercise only those powers that are specifically given them by statute.
See 6th & Neches v. Aldridge, 992 S.W.2d 684,687 (Tex. App.-Austin 1999, pet. denied); Sexton
v. Mount Olivet Cemetery Ass’n, 720 S.W.2d 129, 137 (Tex. App.-Austin 1986, writ refd n.r.e.).
However, agencies also have implied powers to do that which is necessary to carry out the specific
powers delegated, for the legislature intended a workable and effective exercise of the powers
expressly and specifically granted the agency. See Mount Olivet, 720 S.W.2d at 137-39 (full extent
of power specifically granted agency must be ascertained with due regard for rule that legislature
intends agency should have, by implication, such authority aa may be necessary to carry out specific
powers delegated). In considering the validity of a state agency rule, the determinative factor as to
whether the agency has exceeded its authority is whether the rule is in harmony with the general
objectives of the statute. Gent v. Oak CliffSavings & Loan Ass’n, 432 S.W.2d 702, 706 (Tex.
1968). Although administrative rules are presumed valid, they may be found void if adopted without
statutory authority. Hollywood Calling v. Public Util. Comm’n, 805 S.W.2d 618, 620 (Tex.
App.-Austin 1991, no writ); seealsoBrown v. HumbleOil& ReJ Co., 87 S.W.2d 1069 (Tex. 1935).
We conclude that the Department has implied authority to establish the Statewide
Transportation Policy Committee and the Bicycle Advisory Committee. With respect to the
Statewide Transportation Policy Committee, for example, section 201.601 of the Transportation
Code and 23 U.S.C. 5 135 require the Department to develop’s statewide transportation plan that
encompasses all modes of transportation. See 43 TEX. ADMIN. CODE 5 1.85(2)(A) (1999) (rule
establishing purpose of Statewide Transportation Policy Committee); see also 23 U.S.C. $ 135(a)
(West Supp. 1999); TEX. TFLANSP.CODE ANN. 4 201.601 (Vernon 1999). State law requires the
Department to seek opinions and assistance from other state agencies and political subdivisions in
developing the plan. SeeTEX. TRANSP. CODE ANN. 5 201.601 (b) (Vernon 1999). Federal law further
provides that in developing the plan the department must seek public input from interested parties.
See23 U.S.C. 5 135(e)(3)(A)(West Supp. 1999) (“Indeveloping thelong-rangetransportationplan,
the State shall. provide citizens, affected public agencies, representatives oftransportation agency
Mr. Charles W. Heald, P.E. - Page 5 (JC-0189)
employees, freight shippers, private providers of transportation, representatives of users of public
transit, providers of freight transportation services, and other interested parties with a reasonable
opportunity to comment on the proposed plan”).
The Department’s rule establishing the committee provides: “To comply with these require-
ments, the Statewide Transportation Policy Committee, to be composed of private transportation
providers and other governmental agencies and individuals concerned with transportation, will
advise the department on its statewide transportation plan. The committee will provide a forum for
identifying issues to be addressed by the planning process and for providing input into the
department’s planning process.” 43 TEX. ADMIN. CODE 5 1,85(2)(A) (1999). We conclude that state
and federal law requiring the Department to develop a statewide transportation plan with the input
of other governmental entities and the public provides implied authority for the Department to
establish the Statewide Transportation Policy Committee for the purposes stated in the rule.
The Department’s rule establishing the Bicycle Advisory Committee states that its purpose
“is to advise the commission on bicycle issues. By involving representatives ofthe public, including
bicyclists, the department helps ensure effective communication with the bicycle community, and
that the bicyclist’s perspective will be considered in the development of departmental policies
affecting bicycle use including the design, construction and maintenance of highways.” Id.
5 1,85(a)(S)(A). Section 201.902 of the Transportation Code charges the Department with
designating a statewide bicycle coordinator and regional bicycle coordinators to assist the
Department in developing rules and plans to enhance the use of the state highway system by
bicyclists, see TEX. TRANSP. CODE ANN. 5 201.902(a), (b) (V emon 1999), and with adopting rules
relating to the use of roads in the state highway system by bicyclists, including provisions for:
(1) the specific duties ofthe statewide bicycle coordinator and the
regional bicycle coordinators;
(2) obtaining comments from bicyclists on:
(A) a highway project that might affect bicycle use;
(B) the use of a highway for bicycling events; and
(C) department policies affecting bicycle use of state
highways;
(3) the consideration of acceptable national bicycle design,
construction, and maintenance standards on a project in an area with
significant bicycle use; and
(4) any other matter the commission determines necessary to
enhance the use of the state highway system by bicyclists.
Mr. Charles W. Heald, P.E. - Page 6 (X-0189)
Id. 5 201.902(c). We conclude that this statutory mandate, which requires the Department to obtain
the comment of bicyclists on a number of issues, provides implied authority for the Department to
establish the Bicycle Advisory Committee.
We note that state law expressly requires the Department to establish advisory committees
on subjects such as aviation, household goods carriers, public transportation, vehicle storage
facilities, and port authorities. See TEX. TRANSP. CODE ANN. $5 21.003 (Vernon 1999) (Aviation
Advisory Committee), 53.001 (Port Advisory Committee), 455.004 (Public Transportation Advisory
Committee), 643.155 (Vernon Supp. 2000) (Household Goods Carriers Advisory Committee),
643.202 (Vernon 1999) (Vehicle Storage Facility/Tow Truck Rules Advisory Committee); see also
43 TEX. ADMIN. CODE 5 1.83 (1999) (Department rules regarding statutory advisory committees).
In some instances, the express provision for committees to advise a state agency on particular
matters may indicate that the legislature intends to limit the agency’s authority to create others. In
other instances, it may be clear from a statute that the legislature intends to limit public participation
or outside influence with respect to a certain regulatory matter, thereby impliedly limiting the
agency’s authority to create an advisory committee. Here, however, we do not believe that the
legislature’s express provision for committees to advise the Department on certain matters precludes
the Department from creating other advisory committees in order to comply with other statutory
mandates. Furthermore, creation of the committees at issue is entirely consistent with the Dcpart-
merit’s express statutory authority.
In sum, we conclude that the Department has implied authority to establish the Statewide
Transportation Policy Committee and the Bicycle Advisory Committee. Of course, as state agency
advisory committees, the Statewide Transportation Policy Committee and the Bicycle Advisory
Committee are generally subject to chapter 2110 of the Government Code. See TEX. GOV’T CODE
ANN. 5 2110.001 (Vernon 2000) (defining advisory committee as a committee “created by or under
state law” that “has as its primary function advising a state agency”). Chapter 2110 requires the
Department not only to adopt rules stating the committees’ purpose, but also to annually evaluate
the committees’ work, usefulness and costs. See id. $3 2110.005, ,006.
Mr. Charles W. Heald, P.E. - Page 7 (X-0189)
SUMMARY
A state agency’s authority to create an advisory committee
depends upon statutes specifically governing the agency and may be
express or implied. The Texas Department of Transportation has
implied authority to establish the Statewide Transportation Policy
Committee and the Bicycle Advisory Committee. See 43 TEX.
ADMIN. CODE 5 1.85(2), (8) (1999).
Attorney General Letter Opinion 98-009 is modified to the
extent it may be read to construe chapter 2110 of the Government
Code to provide that a state agency may not create an advisory
committee absent express statutory authority.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK RENT ERVIN
Deputy Attorney General - General Counsel
ELIZABETH ROBINSON
Chair, Opinion Committee
Mary R. Crouter
Assistant Attorney General - Opinion Committee