March 1,200O 

Mr. Charles W. Heald, P.E. 

Executive Director 

Texas Department of Transportation 

125 East 11 th Street 

Austin, Texas 78701-2483 

Opinion No. K-0189 

Re: Whether the Texas Department of Transportation is authorized to establish the Statewide 

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 COMPTROLLER OF PUBLIC ACCOUNTS, TEXAS PERFORMANCE REVIEW, 

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 

‘Former article 6252-33 was repealed and codified in the Government Code in 1997. See Act ofMay 8,1997, 

75th Leg., R.S., ch. 165, $ 16.01( a ) ( enacting chapter 2110 of the Government Code and repealing article 6252-33, 

Revised Civil 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 requirements, 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 Dcpartmerit’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