Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 12,2011
The Honorable Rene Guerra Opinion No. GA-0885
Hidalgo County Criminal District Attorney
Hidalgo County Courthouse Re: Process to appoint a person to fill a vacancy or
100 North Closner, Room 303 to serve a subsequent term as a member of a board
Edinburg, Texas 78539 of directors of a regional mobility authority
(RQ-0955-GA)
Dear Mr. Guerra:
Chapter 370 of the Transportation Code governs the creation of a regional mobility authority
("RMA") and the appointment of board of directors members, each of whom serves for a two-year
term. TEX. TRANSP. CODE ANN. §§ 370.031, .251(c)-(d) CWest2007 &Supp. 2010). You ask about
the process to appoint a person to fill a vacancy to serve an unexpired term on the board, or to serve
a new term once a prior term of a position on the board has expired. 1
An RMA may be created only with the approval of the Texas Transportation Commission
(the "Transportation Commission"). TEX. TRANSP. CODE ANN. § 370.031(b) (West 2007).2 The
Commission is required to adopt rules that govern the creation ofRMAs and "commission approvals
required by" the chapter. Id. § 370.038(a)(2). An RMA is governed by a "board of directors
consisting of representatives of each county in which a transportation project of the authority is
located or is proposed to be located." Id. § 370.251(a) (West Supp. 2010). Chapter 370 authorizes
various persons and entities to appoint a director or directors according to particular circumstances. 3
Pertinent to your question, however, section 370.251(a) provides generally that
lSee Letter fTom Honorable Rene Guerra, Hidalgo County Criminal District Attorney, to Honorable Greg
Abbott, Attorney General of Texas at 2-3 (Mar. 16, 2011), https:llwww.oag.state.tx.us/opin/index_rq.s!ltml ("Request
, Letter").
21n chapter 370, a reference to the "'Commission' means the Texas TranspOltation Commission." TEX. TRANSP.
CODE ANN. § 201.001(a)(1) (West 2011).
3See, e.g., TEx. TRANSP. CODE ANN. §§ 370.251(a) (the Governor appoints a director as presiding officer, and
another director if necessary to maintain an odd number of directors on the bom-d); 370.251(a-1) (special requirements
for RMA created by a municipality); 370.251(b) (appointment authority of a commissioners court of a county that
contains an operating transportation proj ect of the RMA or a county that is subsequently added to an RMA), as amended
by Act of May 28,2011, 82d Leg., R.S., ch. 1279, § 12,2011 Tex. Sess. Law Servo 3565, 3570-71 (West).
The Honorable Rene Guerra - Page 2 (GA-0885)
[t]he commissioners court of each county that initially forms the
authority shall appoint at least two directors to the board. Additional
directors may be appointed to the board at the time of initial
formation by agreement of the counties creating the authority to
ensure fair representation of political subdivisions in the counties of
the authority that will be affected by a transportation project of the
authority, provided that the number of directors must be an odd
number.
rd. Under section 370.251(j), the Transportation Commission "may refuse to authorize the creation
of an authority if the commission determines that the proposed board will not fairly represent
politicai subdivisions iri the counties of the authority'that will be affected by the creation of the
authority." Id. § 370.251(j).
To create an RMA, the Transportat~on Commission's rules require one or more counties to
file a petition that includes, among other things, "the representation criteria and the appointment
process for board members." 43 TEX. ADMIN. CODE § 26.11(a)(6) (2011) (Tex. Dep't of Transp.,
Petition). You inform us that the Transportation Commission has approved an amended petition to
create the Hidalgo County Regional Mobility Authority (the "Authority"), which states that the initial
board of directors will consist of seven directors, and that six of the members will be appointed from
specified areas and municipalities of Hidalgo County (the "County"). Request Letter at 1.
You ask generally about the process for appointing successor directors. Id. at 2-3. Section,
370.251 (e) provides that the "appointing authority" appoints a successor director to serve out an
unexpired term. TEX. TRANSP. CODEANN'. § 370.251(e) (West Supp. 2010). The section does not
address the selection of successor directors to serve a subsequent term. Id. § 370.251 (c). However,
the statute must be construed as authorizing the appointment o~ successor directors for subsequent
terms, because it would be unreasonable for the entire board of directors to become vacant after the
initial term. See id. § 370.331 (West 2007) (providing that an RMA may not be dissolved without
following specified procedure).
Furthermore, in reading the seCtion as a whole, it appears that the person 01' entity who
initially appointed a director also appoints the director's successor. An RMA's "additional
directors," who ar.e appointed "to ensure fair representation," are appointed by agreement of the
counties that created the authority. Id. § 370.251(a) (West Supp. 2010).4 Because the RMA at issue
in this opinion is a single-county RMA, the single county's commissioners court is the "appointing
authority" authorized to appoint the successors to the "additional directors." The commissioners
4The 2011 amendment to section 370.251(b) provides that a director for a subsequently added county or from
a county of an authority that contains an operating transportation project shall be appointed "by a process unanimously
agreed to by the cOlmmssioners courts of all the counties of the authority." Act of May 28, 2011, 82d Leg., R.S., ch:
1279, § 12,2011 Tex. Sess. Law Servo 3565, 3570-71 (West).
The Honorable Rene Guerra - Page 3 (GA-0885)
court's appointment authority remains the same whether the successor is appointed to fill a new term
or an unexpired term.
You ask specifically whether the County must use the same representation criteria provided
in its petition to create the Authority when the commissioners court appoints a successor director to
fill a vacancy or to serve a new term. Request Letter at 2. Under the Transportation Commission's
Rule 26.11, a statement about representation criteria must be included in a petition seeking to
establish an RMA. 43 TEX. ADMIN. CODE § 26.11(a)(6) (2011) (Tex. Dep't of Transp., Petition).
However, the plain text of Rule 26.11 does not specifically require the stated criteria to be used for
any other purpose. The Transportation Commission's order approving RMA petitions "establish [es],
consistent with Transportation Code § 370.251, the initial size of the board." Id. § 26.14(a)(2)
(emphasis added). These rules implement Transportation Code section 370.251 's representational
fairness provisions. Like Rule 26.11, promulgated by the Transportation Commission, section
370.251.of the Transportation Code specifically refers to the creation or formation of an RMA or the
addition of a county to an existing RMA. TEX. TRANSP. CODE ANN: § 370.251 (a), 0) (West Supp .
. 2010). No other statute or rule requires that the same representation criteria setforth in a petition
to create an RMA necessarily applies to successor directors appointed to oversee an RMA. Thus,
while courts generally defer to a state agency's interpretation of its own rules, 5 we do not construe
chapter 370 or the Transportation Commission's rules implementing that chapter to require, a county
to use the initial representation criteria set forth in the petition creating an RMA when the
commissioners court appoints successor directors.
That being the case, you ask next what process the County should follow to choose new
representation criteria and amend the appointment process. Request Letter at 2. Because the
commissioners court has the duty to appoint successor directors, the process it must follow is a .
matter for the county commissioners court to decide. See Anderson v. Wood, 152 S.W.2d 1084,1085
(Tex. 1941) ("Where a right is conferred or obligation imposed on [a commissioners] court, it has
implied authority to exercise a broad discretion to accomplish the purposes intended.").
You ask further whether the Transportation Commission must approve the County's
appointment process and representation criteria to appoint successor directors. Request Letter at 2.
Chapter 370 requires the Transportation Commission to approve a request or petition to (1) create
an RMA or (2) allow another county to become a part of an existing RMA and, in either case, the
Transportation Commission may deny the petition or request on the grounds of representational
fairness. TEX. TRANSP. CODEANN. §§ 370.031(a), .0315(a)(2) (West 2007), 370.2510) (WestSupp.
2010). The Transportation Commission's Rule 26.11 likewise concerns only the petition to create
an RMA. 43 TEX. ADMIN. CODE § 26.11 (2011) (Tex. Dep't of Transp., Petition). Neither chapter
370 nor the Transportation Commission's administrative rule expressly requires the Transpoltation
5TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).
The Honorable Rene Guerra - Page 4 (GA-0885)
Commission to approve the county's appointment of successor directors. 6 thus, we conclude that
the County is not required to seek Transportation Commission approval of its appointment process
and representation criteria to appoint successor directors.
Finally, you ask what factors the County should take into consideration when determining
representation criteria. Request Letter at 3. Eligibility requirements limit the choice of director to
a person who is a resident of Texas and of a county within the geographic area of the authority. TEX.
TRANSP. CODE ANN. § 370.251(a-1)(2), (g)(2) (West Supp. 2010). Also, chapter 370 as a whole
suggests that fair representation of political subdivisions in a county participating in an RMA is
intended not only for the appointment of initial directors, but for subsequen(appointments. See id.
§§ 370.0315(a)(2) (West 2007), 370.251(a) (West Supp. 2010); see Lamar Homes, Inc. v.
Mid-Continent Cas. Co., 242 S.W.3d 1, 19 (Tex. 2007) (stating that courts "consider [a] statute as
a whole and construe it in a manner which harmonizes all of its various provisions"). However, no
statute or rule states what factors a county must consider to achieve fair representation of political
subdivisions. Accordingly, we believe that the factors to consider when determining fair·
representation criteria to appoint a successor director are also matters for the county cominissioners
court to decide in the first instance.
6We note that the Transportation Commission has proposed new Rule 26.17 for adoption to clarify aspects of
the selection process after the initial board has been appointed: '
§ 26.17. Board Membership after Commission Approval.
(a) After the commission approves the composition and appointment method of the board of an RMA
under § 26.13 or § 26.16 of this subchapter (i-elating to Approval and Alternate Board Composition
and Method of Appointment, respectively) and the RMA has been created and the initial board
members have been appointed, the representation criteria and appointment process for the RMA's
board members may be revised by the governing body of each county that is a member of the RMA
or the city that created the RMA.
(b) A revision under subsection (a) of this section is not subject to review or approval of the
commission.
(c) After the appointment of the initial board members, an appointment to an RMA's board is not
subject to review or approval of the commission.
36 TEX. REG. 5832 (2011) (to be codified at 43 TEx. ADMIN. CODE § 26.17) (proposed Sept. 9, 2011) (Tex. Dep't of
Transp.).
The Honorable Rene Guerra - Page 5 (GA-0885)
SUMMARY
While courts generally defer to a state agency's interpretation
of its own rules, we do not interpret chapter 370 of the Transportation
Code or the Transportation Commission's rules implementing that
chapter to require a county to use the same representation criteria that
it used to select a regional mobility authority's initial directors when
the county appoints successor directors. Such a county is not required
to seek the Texas Transportation Commission's approval to establish
its process and representation criteria for appointing successor
directors.
The process for appointing successor directors and the factors
that should be considered to ensure fair representation of political
subdivisions in a single-county regional mobility authority is a matter
for the commissioners court of the county to determine in the first
instance.
Very truly yours,
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee