ATTORNEY GENERAL OF TEXAS GREG ABBOTT

September 12,2011

The Honorable Rene Guerra Hidalgo County Criminal District Attorney Hidalgo County Courthouse 100 North Closner, Room 303 Edinburg, Texas 78539

Dear Mr. Guerra: Opinion No. GA-0885 Re: Process to appoint a person to fill a vacancy or to serve a subsequent term as a member of a board ofdirectors ofa regional mobility authority (RQ-0955-GA)

Chapter 370 ofthe Transportation Code governsthe creation ofaregional mobility authority ("RMA") and the appointment ofboard ofdirectors members, each ofwhom serves for a two-year term. TEX. TRANSP. CODEANN. §§ 370.031, .251(c)-(d) CWest2007 &Supp. 2010). You ask about theprocess to appoint a person to fill a vacancy to serve an unexpiredterm 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 ofthe Texas Transportation Commission (the "Transportation Commission"). TEX. TRANSP. CODE ANN. § 370.031(b) (West 2007).2 The Commissionis requiredto adoptrules thatgovernthecreationofRMAs 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 accordingto particularcircumstances.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 ofTexas at 2-3 (Mar. 16, 2011), https:llwww.oag.state.tx.us/opin/index_rq.s!ltml ("Request

, Letter"). 21n chapter370, areferenceto the "'Commission' meanstheTexasTranspOltationCommission." TEX. TRANSP.

CODE ANN. § 201.001(a)(1) (West 2011). 3See, e.g., TEx. TRANSP. CODEANN. §§ 370.251(a) (the Governor appoints a director as presiding officer, and another director ifnecessary to maintain an odd number ofdirectors 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 transportationprojectofthe RMA or a county thatis subsequently added to anRMA), as amended by Act ofMay 28,2011, 82d Leg., R.S., ch. 1279, § 12,2011 Tex. Sess. Law Servo 3565, 3570-71 (West).The Honorable Rene Guerra

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[t]he commissioners court of each county that initially forms the authority shall appoint at leasttwo 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 ofpolitical 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 "mayrefuse to authorize the creation of an authority if the commission determines that the proposed board will not fairly represent politicai subdivisions iri the countiesof 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 ofTransp., Petition). You informus that the Transportation Commission has approved an amendedpetition to createtheHidalgo CountyRegionalMobilityAuthority (the "Authority"), which states thattheinitial board ofdirectors will consist ofseven directors, and that six ofthe members willbe appointedfrom specified areas and municipalities ofHidalgo 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 ofsuccessor 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 wouldbe unreasonable for the entire board ofdirectors 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 createdthe 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 ofan authority that contains an operating transportation project shall be appointed "by a process unanimously agreed to by the cOlmmssioners courts of all the counties ofthe authority." Act ofMay 28, 2011, 82d Leg., R.S., ch: 1279, § 12,2011 Tex. Sess. Law Servo 3565, 3570-71 (West).The Honorable Rene Guerra

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court's appointment authorityremains the samewhetherthe successoris appointedto fill anewterm or an unexpired term. You ask specifically whether the Countymustuse the samerepresentation criteriaprovided inits petition to create the Authority when the commissioners court appoints a successor directorto fill a vacancy or to serve a new term. RequestLetter 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 ofTransp., Petition). However, the plain text ofRule 26.11 does not specifically require the stated criteriato be used for any otherpurpose. TheTransportationCommission's order approvingRMApetitions "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.ofthe Transportation Code specificallyrefers to the creation orformation ofan RMAorthe addition ofa 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 ofits own rules,5 we do not construe chapter 370 orthe Transportation Commission'srules implementingthatchapterto require,acounty 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 . matterfor thecountycommissioners courtto decide. SeeAndersonv. 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 criteriato appoint successor directors. RequestLetter 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 ofrepresentational fairness. TEX. TRANSP. CODEANN. §§ 370.031(a), .0315(a)(2) (West2007), 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 ofTransp., Petition). Neither chapter 370 northe Transportation Commission's administrativerule expresslyrequires the Transpoltation

5TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex. 2011).The Honorable Rene Guerra

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Commission to approve the county's appointment ofsuccessor directors. 6 thus, we conclude that the Countyis not required to seek Transportation Commission approval ofits 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 ofdirector to apersonwho is aresident ofTexas and ofa countywithinthe geographic area ofthe 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 ofpolitical subdivisions in a county participating in an RMA is intended not only for the appointment ofinitial directors, butfor 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 itin a manner which harmonizes all ofits various provisions"). However, no statute or rule states what factors a county must consider to achieve fair representation ofpolitical subdivisions. Accordingly, we believe that the factors to consider when determining fair· representation criteriato 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) Afterthe commission approves the composition and appointmentmethod oftheboardofanRMA under § 26.13 or § 26.16 ofthis 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 ofeach county that is a member ofthe 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 ofthe 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

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### SUMMARY While courts generally defer to a state agency's interpretation ofits own rules, we do notinterpretchapter 370 ofthe Transportation Code or the Transportation Commission's rules implementing that chapterto require acountyto use the samerepresentation criteriathat itused to select a regional mobility authority's initial directors when thecounty appoints successor directors. Suchacountyis notrequired to seekthe Texas Transportation Commission's approval to establish its process and representation criteria for appointing successor directors. Theprocess for appointing successordirectors andthefactors that should be considered to ensure fair representation of political subdivisions in a single-countyregional mobility authorityis amatter for the commissioners court of the county to determine in the first instance.

DANIEL T. HODGE First Assistant Attorney General DAVID J. SCHENCK Deputy Attorney General for Legal Counsel JASON BOATRIGHT Chair, Opinion Committee William 

### A. Hill Very truly yours,

Assistant Attorney General, Opinion Committee