Who appoints successor directors to a Texas regional mobility authority board?

Plain-English summary

Rene Guerra, the Hidalgo County Criminal District Attorney, asked the Attorney General how a regional mobility authority (RMA) fills board seats after the initial appointments, both to finish an unexpired term and to start a new one. The Hidalgo County Regional Mobility Authority is a single-county RMA whose Transportation Commission-approved petition set a seven-member initial board, six of them drawn from specified areas and municipalities of the county.

Chapter 370 of the Transportation Code creates RMAs and provides that directors serve two-year terms. It says the "appointing authority" appoints a successor to serve out an unexpired term, but does not spell out who picks successors for a new term. The opinion reasoned the statute has to authorize appointing successors for new terms too, because it would be unreasonable for the whole board to go vacant after the first term, and an RMA cannot simply be dissolved. Reading the chapter as a whole, the opinion concluded that whoever made the initial appointment also makes the successor appointment. For this single-county RMA, that is the county commissioners court, and its appointing power is the same whether the successor fills a new term or an unexpired one.

The opinion then worked through the DA's follow-up questions. The county does not have to use the same representation criteria from its creation petition when it appoints successors; the Transportation Commission's Rule 26.11 requires those criteria only in the petition to create an RMA, not for later appointments. Because the commissioners court has the duty to appoint successors, the process it follows, and the factors it weighs to ensure fair representation of political subdivisions, are matters for the commissioners court to decide in the first instance, subject to the statutory eligibility limits (a director must be a Texas resident and live in a county within the authority's area). Finally, the county does not need the Transportation Commission's approval of its successor-appointment process or criteria; the Commission's approval role under chapter 370 and Rule 26.11 reaches creating an RMA or adding a county, not later successor appointments. The opinion noted the Commission had proposed a new rule confirming that post-creation appointments are not subject to its review.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Hidalgo County and its commissioners court (as the opinion held for them): The opinion told the county that, as the appointing authority for this single-county RMA, its commissioners court appoints successor directors for both new and unexpired terms, sets the process for doing so, and does not need Transportation Commission approval to establish that process or its representation criteria.

On the representation criteria (as the opinion described it): The opinion treated the petition's representation criteria as required only at creation; it did not read chapter 370 or the rules to bind the county to those same criteria when appointing successors.

On what the opinion left to the commissioners court (where it stopped): The opinion said the process for appointing successors and the factors for ensuring fair representation are matters for the commissioners court to determine in the first instance, within the statutory eligibility limits. It did not prescribe a particular process or set of factors.

Common questions

Who appoints successor directors to a single-county RMA board?
According to the opinion, the county commissioners court, the same body that made the initial appointments, appoints successors for both new and unexpired terms.

Does the county have to reuse the representation criteria from its RMA petition?
No. The opinion concluded that chapter 370 and the Transportation Commission's rules do not require the county to apply the initial petition's representation criteria when appointing successor directors.

Does the Transportation Commission have to approve the county's successor-appointment process?
The opinion concluded it does not. The Commission's approval role covers creating an RMA or adding a county, not later successor appointments.

Who decides the process and the fair-representation factors?
The opinion left both to the county commissioners court to decide in the first instance, subject to the statutory eligibility requirements for directors.

Background and statutory framework

Chapter 370 of the Transportation Code governs RMAs, with directors serving two-year terms. Tex. Transp. Code Ann. § 370.031 (West 2007); id. § 370.251(a) (West Supp. 2010). An RMA may be created only with Transportation Commission approval, and the Commission adopts rules governing creation and required approvals. Id. § 370.038(a)(2). The "appointing authority" appoints a successor to serve an unexpired term, id. § 370.251(e) (West Supp. 2010), and the Commission may refuse to authorize an RMA that will not fairly represent political subdivisions, id. § 370.251(j). An RMA cannot be dissolved without following a specified procedure. Id. § 370.331 (West 2007). Directors must be Texas residents living in a county within the authority's area. Id. § 370.251(a-1)(2), (g)(2) (West Supp. 2010); id. § 370.0315(a)(2) (West 2007). In chapter 370, "Commission" means the Texas Transportation Commission. Id. § 201.001(a)(1) (West 2011). The Commission's rules require representation criteria in the creation petition, 43 Tex. Admin. Code § 26.11(a)(6) (2011), and its approval order establishes the initial board size, id. § 26.14(a)(2).

The opinion construed the chapter as a whole and applied the commissioners court's implied discretion. Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011); Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 19 (Tex. 2007).

Citations

Cases:

• Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941)
• TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011)
• Lamar Homes, Inc. v. Mid-Continent Cas. Co., 242 S.W.3d 1, 19 (Tex. 2007)

Statutes:

• Tex. Transp. Code Ann. § 370.031 (West 2007)
• Tex. Transp. Code Ann. § 370.038(a)(2)
• Tex. Transp. Code Ann. § 370.251(a) (West Supp. 2010)
• Tex. Transp. Code Ann. § 370.251(e) (West Supp. 2010)
• Tex. Transp. Code Ann. § 370.251(j)
• Tex. Transp. Code Ann. § 370.251(a-1)(2), (g)(2) (West Supp. 2010)
• Tex. Transp. Code Ann. § 370.0315(a)(2) (West 2007)
• Tex. Transp. Code Ann. § 370.331 (West 2007)
• Tex. Transp. Code Ann. § 201.001(a)(1) (West 2011)
• 43 Tex. Admin. Code § 26.11(a)(6) (2011)
• 43 Tex. Admin. Code § 26.14(a)(2)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0885
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0885.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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) (West 2007 & 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 of RMAs 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

[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.

Id.

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 political subdivisions in the counties of the authority that will be affected by the creation of the authority." Id. § 370.251(j).

To create an RMA, the Transportation 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. CODE ANN. § 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 of 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 or entity who initially appointed a director also appoints the director's successor. An RMA's "additional directors," who are 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 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), (j) (West Supp. 2010). No other statute or rule requires that the same representation criteria set forth 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. CODE ANN. §§ 370.031(a), .0315(a)(2) (West 2007), 370.251(j) (West Supp. 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 Transportation 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 subsequent 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 commissioners court to decide in the first instance.

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

[1] See Letter from Honorable Rene Guerra, Hidalgo County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas at 2-3 (Mar. 16, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").

[2] In chapter 370, a reference to the "'Commission' means the Texas Transportation Commission." TEX. TRANSP. CODE ANN. § 201.001(a)(1) (West 2011).

[3] See, 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 board); 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 project 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 Serv. 3565, 3570-71 (West).

[4] The 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 commissioners courts of all the counties of the authority." Act of May 28, 2011, 82d Leg., R.S., ch. 1279, § 12, 2011 Tex. Sess. Law Serv. 3565, 3570-71 (West).

[5] TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).

[6] We 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 (relating 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.).