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REGIONAL PLANNING COMMISSIONS THE LAW, EXPECTATIONS AND REALITIES

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 ghudson@holaw.net. Introduction.

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REGIONAL PLANNING COMMISSIONS THE LAW, EXPECTATIONS AND REALITIES

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  1. REGIONAL PLANNING COMMISSIONSTHE 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 ghudson@holaw.net

  2. 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. • 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 .

  3. 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) • Regional Planning Commissions are authorized under chapter 391 of the Texas Local Government Code. • You can find the Texas statutes online at http://tlo2.tlc.state.tx.us/statutes/statutes.html. • Chapter 391 is lengthy, but here are some excerpts that are pertinent to this presentation.

  4. CHAPTER 391. REGIONAL PLANNING COMMISSIONSSec. 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.

  5. 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

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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)

  11. 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.

  12. Regional Planning Commissions can be created by an agreement of local governments Boundaries must be coterminous with those regions or subregions delineated by the governor A Regional Planning Commission is a political subdivision (independent unit of local government) A Regional Planning Commission may plan for the development of a region and make recommendations as to major thoroughfares Summary of Statutes

  13. Summary of Statutes (cont’d) • A plan created by the Regional Planning Commission may be adopted in whole or part by the participating local governments • The Governor possesses authority to adopt rules pertaining to the oversight and operation of a Regional Planning Commission • The Governor possesses the authority to adopt rules pertaining to the expenditure of funds by a Regional Planning Commission

  14. Summary of Statutes (cont’d) • 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.

  15. Regulations Adopted By The Governor State Regulations can be found in the Texas Administrative Code http://info.sos.state.tx.us/pls/pub/readtac$ext.viewtac

  16. 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????

  17. Map of Regions http://www.txregionalcouncil.org/display.php?page=regions_map.php

  18. 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. Creation of a Subregional Council????

  19. State Planning Regions For information on the state's 24 regional councils of governments please contact:The Texas Association of Regional Councils 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

  20. So, Would The Creation Of a New Subregional Planning Commission Comply with the law?? 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)

  21. 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

  22. There already exists a Regional Planning Commission Including Brewster County Rio Grande Council of Governments http://www.riocog.org/ 1100 N. Stanton, Suite 610 El Paso, Texas 79902 (915) 533-0998 Fax:  (915) 532-9385

  23. 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.

  24. Requirement of a Study • 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 • Practical problems - funding the study - reaching consensus - getting approvals

  25. “State agencies shall, to the greatest extent feasible, coordinate planning with commissions” • 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

  26. The clause requiring “coordination” is not a new provision • 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

  27. OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF TEXASOpinion No. H-4581974 Tex. AG LEXIS 82November 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

  28. AN ACT 1-2 relating to state and regional coordination of planning and 1-3     development for implementation of state programs. 1-4           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5           SECTION 1.  Section 391.009, Local Government Code, is 1-6     amended by adding Subsection (c) to read as follows: 1-7           (c)  In carrying out their planning and program development 1-8     responsibilities, state agencies shall, to the greatest extent 1-9     feasible, coordinate planning with commissions to ensure effective 1-10     and orderly implementation of state programs at the regional level. 1-11          SECTION 2.  This Act takes effect immediately if it receives 1-12     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.        

  29. Problems With the Litigation Option To Stop La Entrada • 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?)

  30. Regional Planning Commissions Are Subject To Lots Of Bureaucracy • They are units of local government and have to be accountable to the public in all aspects • This triggers: • 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

  31. 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 Alternatives To Protest La Entrada

  32. Conclusion And Comments • 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

  33. REGIONAL PLANNING COMMISSIONSTHE 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 ghudson@holaw.net

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