Transcript REGIONAL PLANNING COMMISSIONS THE LAW, EXPECTATIONS …

REGIONAL PLANNING
COMMISSIONS
THE LAW, EXPECTATIONS AND
REALITIES
A PRESENTATION TO THE BREWSTER COUNTY
COMMISSIONERS COURT
January 14, 2008
Greg Hudson
Hudson & O’Leary LLP
(512) 441-9941 – phone
(512) 441-1501 – fax
[email protected]
Introduction

This presentation is focused on the law and regulations
applicable to regional planning commissions (popularly known
as COG’s – Councils of Government) created under chapter 391
of the Texas Local Government Code. It focuses on the
creation, composition and authority of such entities.
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It has been suggested that the creation of a subregional
plannning commission would enable the local communities to
act to protect the region from the negative effects of the La
Entrada al Pacifico Highway plan. Some of those concepts are
discussed herein.

This presentation does not address in detail other means in
which to address TxDot, the La Entrada al Pacifico highway plan
or MOTRAN .
The Law

Local Governments generally have only those powers granted to
them by the Texas Legislature and the implied powers to carry
out their express authority. This is especially true for Texas
Counties. (See Canales v. Laughlin 214 SW2d 451 (Tex. 1948)
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Regional Planning Commissions are authorized under chapter
391 of the Texas Local Government Code.
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You can find the Texas statutes online at
http://tlo2.tlc.state.tx.us/statutes/statutes.html.
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Chapter 391 is lengthy, but here are some excerpts that are
pertinent to this presentation.
CHAPTER 391. REGIONAL PLANNING COMMISSIONS
Sec. 391.001. PURPOSE.
(a)
The purpose of this chapter is to encourage and permit local governmental
units to:
(1)
join and cooperate to improve the health, safety, and general welfare
of their residents; and
(2)
plan for the future development of communities, areas, and regions
so that:
(A) the planning of transportation systems is improved;
(B) adequate street, utility, health, educational, recreational, and other
essential facilities are provided as the communities, areas, and regions grow;
(C) the needs of agriculture, business, and industry are recognized;
(D) healthful surroundings for family life in residential areas are
provided;
(E) historical and cultural values are preserved; and
(F) the efficient and economical use of public funds is commensurate
with the growth of the communities, areas, and regions.
(b)
The general purpose of a commission is to make studies and plans to guide the
unified, far-reaching development of a region, eliminate duplication, and promote
economy and efficiency in the coordinated development of a region.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 391.002. DEFINITIONS.
In this chapter:
(1)
"Governmental unit" means a county, municipality, authority, district, or
other political subdivision of the state.
(2)
"Commission" means a regional planning commission, council of
governments, or similar regional planning agency created under this chapter.
(3)
"Region" means a geographic area consisting of a county or two or
more adjoining counties that have, in any combination:
(A)
common problems of transportation, water supply, drainage,
or land use;
(B)
similar, common, or interrelated forms of urban development
or concentration; or
(C)
special problems of agriculture, forestry, conservation, or
other matters.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987
Sec. 391.003. CREATION.
(a)
Any combination of counties or municipalities or of counties and municipalities may
agree, by ordinance, resolution, rule, order, or other means, to establish a commission.
(b)
The agreement must designate a region for the commission that:
(1)
consists of territory under the jurisdiction of the counties or
municipalities, including extraterritorial jurisdiction; and
(2)
is consistent with the geographic boundaries for state planning regions or
subregions that are delineated by the governor and that are subject to review and change at the
end of each state biennium.
(c)
A commission is a political subdivision of the state.
(d)
This chapter permits participating governmental units the greatest possible flexibility
to organize a commission most suitable to their view of the region's problems.
(e)
The counties and municipalities making the agreement may join in the exercise of, or
in acting cooperatively in regard to, planning, powers, and duties as provided by law for any or
all of the counties and municipalities.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 391.004. PLANS AND RECOMMENDATIONS.
(a)
A commission may plan for the development of a region and make
recommendations concerning major thoroughfares, streets, traffic and transportation
studies, bridges, airports, parks, recreation sites, school sites, public utilities, land use,
water supply, sanitation facilities, drainage, public buildings, population density, open
spaces, and other items relating to the commission's general purposes.
(b)
A plan or recommendation of a commission may be adopted in whole or in
part by the governing body of a participating governmental unit.
(c)
A commission may assist a participating governmental unit in:
(1)
carrying out a plan or recommendation developed by the
commission; and
(2)
preparing and carrying out local planning consistent with the general
purpose of this chapter.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 391.005. POWERS.
(a)
A commission may contract with a participating governmental unit to perform a
service if:
(1)
the participating governmental unit could contract with a private
organization without governmental powers to perform the service; and
(2)
the contract to perform the service does not impose a cost or obligation
on a participating governmental unit not a party to the contract.
(b)
A commission may:
(1)
purchase, lease, or otherwise acquire property;
(2)
hold or sell or otherwise dispose of property;
(3)
employ staff and consult with and retain experts; or
(A)
provide retirement benefits for its employees through a jointly
contributory retirement plan with an agency, firm, or corporation authorized to do business
in the state; or
(B)
participate in the Texas Municipal Retirement System, the
Employees Retirement System of Texas, or the Texas County and District Retirement System
when those systems by legislation or administrative arrangement permit participation.
POWERS (cont’d)
(c)
Participating governmental units may by joint agreement provide for the manner of
cooperation between participating governmental units and provide for the methods of operation of
the commission, including:
(1)
employment of staff and consultants;
(2)
apportionment of costs and expenses;
(3)
purchase of property and materials; and
(4)
addition of a governmental unit.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987.
Sec. 391.009. ROLE OF STATE AUDITOR, GOVERNOR, AND STATE AGENCIES.
(a)
To protect the public interest and promote the efficient use of public funds, the governor,
with the technical assistance of the state auditor, may draft and adopt:
(1)
rules relating to the operation and oversight of a commission;
(2)
rules relating to the receipt or expenditure of funds by a commission,
including:
(A)
restrictions on the expenditure of any portion of commission funds
for certain classes of expenses; and
(B)
restrictions on the maximum amount of or percentage of
commission funds that may be expended on a class of expenses, including indirect costs or travel
expenses;
(3)
annual reporting requirements for a commission;
(4)
annual audit requirements on funds received or expended by a commission
from any source;
(5)
rules relating to the establishment and use of standards by which the
productivity and performance of each commission can be evaluated; and
(6)
guidelines that commissions and governmental units shall follow in carrying
out the provisions of this chapter relating to review and comment procedures.
(remainder deleted)
Sec. 391.009. ROLE OF STATE AUDITOR, GOVERNOR, AND STATE (cont’d)
(b)
The governor and state agencies shall provide technical information and assistance to the members and
staff of a commission to increase, to the greatest extent feasible, the capability of the commission to discharge its duties
and responsibilities prescribed by this chapter and to ensure compliance with the rules, requirements, and guidelines
adopted under Subsection (a).
(c)
In carrying out their planning and program development responsibilities, state agencies shall,
to the greatest extent feasible, coordinate planning with commissions to ensure effective and orderly implementation of
state programs at the regional level.
Acts 1987, 70th Leg., ch. 149, Sec. 1, eff. Sept. 1, 1987. Amended by Acts 1999, 76th Leg., ch. 281,
Sec. 16, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 694, Sec. 1, eff. June 13, 2001; Acts 2003, 78th
Leg., 3rd C.S., ch. 3, Sec. 9.01, 9.02, eff. Jan. 11, 2004.
Summary of Statutes
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Regional Planning Commissions can be created by an
agreement of local governments
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Boundaries must be coterminous with those regions or
subregions delineated by the governor
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A Regional Planning Commission is a political
subdivision (independent unit of local government)
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A Regional Planning Commission may plan for the
development of a region and make recommendations
as to major thoroughfares
Summary of Statutes (cont’d)
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A plan created by the Regional Planning Commission
may be adopted in whole or part by the participating
local governments
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The Governor possesses authority to adopt rules
pertaining to the oversight and operation of a Regional
Planning Commission
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The Governor possesses the authority to adopt rules
pertaining to the expenditure of funds by a Regional
Planning Commission
Summary of Statutes (cont’d)
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State agencies, to the greatest extent feasible, shall
coordinate planning activities with Regional Planning
Commissions to ensure effective and orderly
implementation of state programs at a regional level.
Regulations Adopted By The Governor
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State Regulations can be found in the Texas
Administrative Code
http://info.sos.state.tx.us/pls/pub/readtac$ext.viewtac
Texas Administrative Code
N
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x
t
ADMINISTRATION
TITLE 1
R
OFFICE
OF
THE
GOVERNOR
PART 1
u
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BUDGET AND PLANNING OFFICE
CHAPTER 5
e
SUBCHAPTER A FEDERAL AND INTERGOVERNMENTAL COORDINATION
>
>
STATE PLANNING ASSISTANCE GRANTS
DIVISION 3
RULE §5.82
General Regulations
(a)
The State of Texas will recognize one regional planning commission
organized under Chapter 391, Local Government Code in each state planning region or
subregion. Only the regional planning commission will be eligible for a state planning
assistance grant.
(b)
A local government desiring to participate in a regional planning commission must
join the regional planning commission serving the state planning region in which that local
government is located.
Questions Regarding the Governor’s Rules
 Does this mean the Governor will only recognize one
Regional Planning Commission in each state planning
region or subregion??
 Or, is this rule applicable only to State Planning
Assistance Grants???
 Section 5.82 is entitled “General Regulations” How to
interpret this in context of whether it applies for
purposes of State Planning Assistance Grants, or more
broadly for Regional Planning Commissions????
Map of Regions
http://www.txregionalcouncil.org/display.php?page=regions_map.php
Creation of a Subregional Council
????
Sec. 391.003. CREATION
(b) The agreement must designate a region for the
commission that:
(1)
consists of territory under the jurisdiction of
the counties or municipalities, including extraterritorial
jurisdiction; and
(2)
is consistent with the geographic boundaries
for state planning regions or subregions that are
delineated by the governor and that are subject to review
and change at the end of each state biennium.
State Planning Regions
For information on the state's 24 regional councils of governments please contact:
The Texas Association of Regional Councils
http://www.governor.state.tx.us/divisions/tracs/planning/view
So, Would The Creation Of a New
Subregional Planning Commission Comply
with the law??
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
Would it be consistent with the geographic
boundaries for state planning regions or
subregions that are delineated by the
governor????;
and that are subject to review and change at the
end of each state biennium (its not the end of the
biennium, so timing is problematic)
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Potential Problems That Could Arise If A
New Subregional Planning Commission Is
Not Created In Strict Accordance With the
Law
Would not have to be recognized by the Governor or State
Agencies (e.g. TxDot)
Funding provided by participating local governments could be
argued to be a misappropriation of funds, or unconstitutional
gift or grant (possible claim on public officials bond)
A reviewing Court could deny standing to the entity to
participate in legal matters
No authority to contract or take any official action
Participating members have no liability protection
It would be subject to annual audit requirements
Embarrassment to local public officials – reducing their standing
There already exists a Regional Planning
Commission Including Brewster County
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Rio Grande Council of Governments
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http://www.riocog.org/
1100 N. Stanton, Suite 610
El Paso, Texas 79902
(915) 533-0998
Fax: (915) 532-9385
Bargaining Power Over Highways
Two promising provisions in the statutes
Chapter 391.001 Purpose
(b)
The general purpose of a commission is to make studies and plans to
guide the unified, far-reaching development of a region, eliminate duplication,
and promote economy and efficiency in the coordinated development of a
region.
Chapter 391.009 –Role of State Auditor, Governor And State Agencies
(c)
In carrying out their planning and program development
responsibilities, state agencies shall, to the greatest extent feasible, coordinate planning with
commissions to ensure effective and orderly implementation of state programs at the regional
level.
Requirement of a Study
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The Subregional Planning Commission would need to
coordinate and prepare a study, that when completed,
could be approved in whole or in part by the member
participating local governments
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Practical problems
- funding the study
- reaching consensus
- getting approvals
“State agencies shall, to the greatest extent
feasible, coordinate planning with
commissions”
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No reported cases in Texas as to what is required –
although this provision has been in the law since 2001.
“Coordination” is a term that would have to be defined
by a court in a particular circumstance
In most instances (other than perhaps a mandamus
action) TxDot would enjoy immunity from suit
Historically, TxDot exercises jurisdiction over highways
without acknowledging any bargaining rights of local
governments
Chapter 391 does not expressly vest RPC’s with rights
to institute litigation
The clause requiring “coordination” is not a
new provision
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It was added in 2001
No authorities (courts, Attorney General, Governor)
have proclaimed that this term gives special bargaining
rights with state agencies.
TxDot already provides public hearings, opportunities
for input, etc. for highway projects – nothing in ch. 391
expressly requires them to do anything more.
Recall that a Regional Planning Commission’s primary
duties are to prepare studies – they are not vested with
bargaining rights by ch. 391
OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXAS
Opinion No. H-458
1974 Tex. AG LEXIS 82
November 25, 1974

Your second question asks whether the Commissioners Court has delegated
its authority over "county business" by joining the regional planning
commission. A commissioners court may not delegate powers involving the
exercise of judgment unless the court is statutorily enabled to do so. Guerra v.
Rodriguez, 239 S.W. 2d 915 (Tex. Civ. App. -- San Antonio 1951, no writ);
Attorney General Opinion V-532 (1948).
In this instance it is our opinion that the Court is not delegating any of its
authority over county business by joining the Commission. Section 3(a) of
Article 1011m provides that "nothing in this Act shall be construed [*4] to
limit the powers of the participating governmental units as provided by
existing law." Section 4(b) designates the purposes of a regional
planning commission as those of making "studies and plans." the
latter of which "may be adopted in whole or in part by the respective
governing bodies of the cooperating governmental units." (Emphasis
added) The statute in no way authorizes any delegation of county
business except with respect to the formulation of studies and plans
AN ACT
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relating to state and regional coordination of planning and
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development for implementation of state programs.
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
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SECTION 1. Section 391.009, Local Government Code, is
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amended by adding Subsection (c) to read as follows:
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(c)
In carrying out their planning and program development
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responsibilities, state agencies shall, to the greatest extent
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feasible, coordinate planning with commissions to ensure effective
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and orderly implementation of state programs at the regional level.
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SECTION 2. This Act takes effect immediately if it receives
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a vote of two-thirds of all the members elected to each house, as
1-13
provided by Section 39, Article III, Texas Constitution. If this
1-14
Act does not receive the vote necessary for immediate effect, this
1-15
Act takes effect September 1, 2001.
_______________________________ _______________________________
President of the Senate
Speaker of the House
I hereby certify that S.B. No. 200 passed the Senate on February 21, 2001, by the following
vote: Yeas 30, Nays 0, one present, not voting.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 200 passed the House on May 23, 2001, by the following vote: Yeas
145, Nays 0, two present, not voting.
Problems With the Litigation Option To Stop
La Entrada
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Obtaining Legal recognition as a subregional planning
commission
Ch. 391 vests no authority to sue
Sovereign immunity available to state agencies (can’t sue
the king)
For a mandamus action premised on TxDot’s refusal to
“coordinate,” when would a cause of action accrue?
Cost – Who would pay? (Can’t depend on state
planning grant funds; why would the State pay to sue
itself ?)
Regional Planning Commissions Are Subject
To Lots Of Bureaucracy
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They are units of local government and have to be
accountable to the public in all aspects
This triggers:
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the Texas Open Meetings Act
the Texas Public Information Act
Public Funds Investment Act
Public Funds Investment Act training
Annual audit requirements
Public Official disclosures, reporting, etc.
Bidding and Procurement laws for purchases, retention of
experts
Alternatives To Protest La Entrada
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Contact and meet with your legislators and express
concerns
Direct concerns to TxDot, attend public meetings and
forums
Continue local “grass roots” group meetings and share
science and studies with elected officials
Form a non-profit organization – has standing to sue
Seek support from Rio Grande Council of
Governments
In short, speak out – but be knowledgeable and concise
Conclusion And Comments
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No question, there are tremendous assets at serious risk
in the region if La Entrada becomes a reality
La Entrada can be attacked through a coordinated
effort without the need for a subregional planning
commission
There are legal and practical problems with the creation
of a subregional planning commission
There may be a role for local governmental officials to
participate in, and coordinate meetings with state
officials to voice local opposition
REGIONAL PLANNING
COMMISSIONS
THE LAW, EXPECTATIONS AND
REALITIES
A PRESENTATION TO THE BREWSTER COUNTY
COMMISSIONERS COURT
January 14, 2008
Greg Hudson
Hudson & O’Leary LLP
(512) 441-9941 – phone
(512) 441-1501 – fax
[email protected]