Does a Texas council of governments count as a 'unit of general local government' for the federal HOME housing program?

Plain-English summary

The federal HOME Investment Partnership Program channels affordable-housing money from the U.S. Department of Housing and Urban Development (HUD) to a "participating jurisdiction," which can be a state or a "unit of general local government." Washington County Attorney Renee Ann Mueller asked the Attorney General whether a Texas council of governments (COG) counts as a "unit of general local government" for that program. The question arose because HUD had refused to recognize the Brazos Valley Council of Governments as such, and the county argued that because a COG looks like a local government under state law it should be treated the same way for the HOME Program.

A COG is a regional planning commission under chapter 391 of the Local Government Code, made up of counties, cities, and other political subdivisions, whose primary purpose is regional planning. Chapter 391 establishes COGs as political subdivisions. But the AG explained that the label a COG carries under Texas law does not settle the federal question. Whether an entity qualifies as a participating jurisdiction in the HOME Program is purely a matter of federal statutory and administrative law, and the federal Act authorizes HUD, not the state, to designate units of general local government, to write the implementing regulations, and to decide the mixed questions of law and fact about an entity's eligibility. So it is for HUD to determine, in the first instance, whether an entity is a unit of general local government, and courts are likely to give HUD's interpretations controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.

Because of that, the AG concluded it could not advise, as a matter of law, that a council of governments is a unit of general local government for purposes of the federal HOME Program. The AG also noted that since the question was one of federal law, it would not resolve a COG's status under state law. In a footnote, the AG observed that a Texas Department of Housing and Community Affairs rule defining "unit of general local government" by the power to tax would exclude COGs, because chapter 391 denies them taxing power, but that no other Texas rule, statute, or court decision the office was aware of defined the term.

Currency note

This opinion was issued in 2014. 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

Washington County and its County Attorney (as the opinion described it): The opinion did not give the county the state-law-based answer it sought. It explained that eligibility for the HOME Program is a federal question for HUD, declined to advise as a matter of law that a COG is a unit of general local government, and declined to resolve a COG's status under state law.

Councils of governments (as the opinion described it): The opinion described a COG as a chapter 391 regional planning commission and political subdivision whose eligibility for the HOME Program depends on HUD's reading of federal law, not on its characterization under Texas law. It noted a TDHCA rule keyed to taxing power would exclude COGs, which chapter 391 bars from taxing.

HUD and HOME Program applicants (as the opinion described it): The opinion described HUD as the agency that decides, in the first instance, whether an entity is a unit of general local government and thus a possible participating jurisdiction, with courts likely deferring to HUD's interpretation of the Act.

Common questions

Did the AG say a Texas COG can get HOME Program funds?
No. The AG declined to decide that, explaining it is a federal question for HUD. It could not advise, as a matter of law, that a council of governments is a "unit of general local government" for the HOME Program.

Why couldn't the state Attorney General just answer the question?
The AG explained that whether an entity qualifies as a participating jurisdiction is purely a matter of federal statutory and administrative law. Congress gave HUD the authority to make that determination and write the rules, and courts generally defer to HUD's interpretation of its own statute.

Does a COG's status under Texas law decide the federal question?
No. The AG said an entity's characterization under state law is not determinative of whether it meets the federal standard, and it declined to resolve a COG's state-law status because the question was about federal law.

Background and statutory framework

The HOME Program is authorized by the HOME Investment Partnerships Act and administered by HUD (42 U.S.C.A. §§ 12701-12839 (West 2013); 24 C.F.R. 92.1 (2013)). The Act lets HUD allocate funds to a "participating jurisdiction," which may be a state or a "unit of general local government" (42 U.S.C.A. § 12746(1)), a term the Act defines three ways: a general-purpose political subdivision of a state; a recognized consortium of such subdivisions; or a designated agency or instrumentality (id. § 12704(1); 24 C.F.R. § 92.2 (2013)). A COG is a chapter 391 regional planning commission and political subdivision (Tex. Loc. Gov't Code Ann. §§ 391.001, .002(2), .003(a), .005(c)(4); id. § 391.003(c)).

The AG explained that the Act authorizes HUD to designate participating jurisdictions, promulgate regulations, and resolve mixed questions of law and fact about eligibility (42 U.S.C.A. §§ 12704(1), (3)-(4), 12746; id. § 12746(3)), so HUD decides in the first instance whether an entity is a unit of general local government. Courts are likely to give HUD's interpretation controlling weight unless arbitrary, capricious, or manifestly contrary to the statute (Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984))), and AG opinions generally defer to a federal agency's interpretation of federal law (Tex. Att'y Gen. Op. No. GA-0289 (2005) at 9). A TDHCA rule defining the term by taxing power would exclude COGs, which chapter 391 bars from taxing (10 Tex. Admin. Code § 5.2(b)(69) (2013); Tex. Loc. Gov't Code Ann. § 391.011(a)).

Citations

Federal and state provisions:

• 42 U.S.C.A. §§ 12701-12839 (West 2013) (HOME Investment Partnerships Act)
• 42 U.S.C.A. § 12746(1) (West 2013) (participating jurisdiction; unit of general local government)
• 42 U.S.C.A. § 12704(1) (West 2013) (definition of "unit of general local government")
• 42 U.S.C.A. §§ 12704(3)-(4), 12746 (West 2013) (HUD designation authority)
• 42 U.S.C.A. § 12746(3) (West 2013) (HUD regulations; mixed questions of law and fact)
• 24 C.F.R. 92.1 (2013); 24 C.F.R. § 92.2 (2013) (HUD rules implementing the HOME Program)
• Tex. Loc. Gov't Code Ann. §§ 391.001, .002(2), .003(a), .005(c)(4) (West 2005) (councils of governments)
• Tex. Loc. Gov't Code Ann. § 391.003(c) (West 2005) (COGs are political subdivisions)
• Tex. Loc. Gov't Code Ann. § 391.011(a) (West 2005) (no taxing power)
• 10 Tex. Admin. Code § 5.2(b)(69) (2013) (TDHCA definition keyed to taxing power)

Cases:

• Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012)
• Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)

Other authority:

• Tex. Att'y Gen. Op. No. GA-0289 (2005) (deferring to a federal agency's interpretation of federal law)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-1037
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2014/ga1037.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

January 2, 2014

The Honorable Renee Ann Mueller Opinion No. GA-1037
Washington County Attorney
100 East Main, Suite 200 Re: Whether councils of governments are "units of
Brenham, Texas 77833 general local government" for purposes of the
federal HOME Investment Partnership Program
(RQ-1139-GA)

Dear Ms. Mueller:

You ask whether councils of governments are "units of general local government" for purposes of the federal HOME Investment Partnership Program (the "HOME Program").[1] The HOME program is an affordable housing funding program authorized by federal statute and administered by the United States Department of Housing and Urban Development ("HUD"). See 42 U.S.C.A. §§ 12701-12839 (West 2013) (the HOME Investment Partnerships Act (the "Act")); 24 C.F.R. 92.1 (2013) (stating that part 92 of HUD rules implement the HOME Program). The Act authorizes HUD to allocate federal funds for a "participating jurisdiction," which may be a state or a "unit of general local government" meeting certain qualifications. 42 U.S.C.A. § 12746(1) (West 2013). Under the Act's definitions, an entity may be a "unit of general local government" in one of three ways:

[1] a city, town, township, county, parish, village, or other general purpose political subdivision of a State; ... [2] a consortium of such political subdivisions recognized by the Secretary in accordance with section 12746(2) of this title; and [3] any agency or instrumentality thereof that is established pursuant to legislation and designated by the chief executive to act on behalf of the jurisdiction with regard to provisions of this Act.

Id. § 12704(1); see also 24 C.F.R. § 92.2 (2013) (parallel definition in HUD regulations).

A council of governments ("COG") is a regional planning commission (a "commission") made up of counties, municipalities, or other political subdivisions. TEX. LOC. GOV'T CODE ANN. §§ 391.001, .002(2), .003(a), .005(c)(4) (West 2005). As a chapter 391 commission, a COG may serve several different functions, but its primary purpose is regional planning. Id. § 391.001. Chapter 391 establishes COGs as political subdivisions. Id. § 391.003(c).

You inform us that HUD "refuses to recognize [the Brazos Valley Council of Governments] as a unit of general local government" for purposes of the HOME Program. Brief at 2. You argue that a COG should be characterized as a unit of general local government under state law and therefore should be considered the same for purposes of the HOME Program. Id. at 4.[2]

Your question, however, is about the meaning of terms in federal statutes and regulations. Whether a governmental entity is a "unit of general local government" under state law is not determinative of whether the entity meets the federal statutory standard for participation in the HOME program. Whether an entity qualifies as a participating jurisdiction under the HOME Program is purely a matter of federal statutory and administrative law, not state law. The federal Act authorizes HUD to designate units of general local government as participating jurisdictions under section 12746 of the Act. 42 U.S.C.A. §§ 12704(3)-(4), 12746 (West 2013). Section 12746 authorizes HUD to promulgate regulations and determine mixed questions of law and fact about an entity's eligibility. See id. § 12746(3). Accordingly, it is for HUD to determine, in the first instance, whether an entity is a unit of general local government.[3]

Because HUD is the agency authorized to administer the HOME Program, courts are likely to give deference to HUD's interpretations of the Act, giving them "'controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.'" Orellana-Monson v. Holder, 685 F.3d 511, 517 (5th Cir. 2012) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)). Likewise, opinions of this office generally defer to federal interpretations of federal law by the agency charged with implementing it. See Tex. Att'y Gen. Op. No. GA-0289 (2005) at 9 (declining to "second-guess the interpretation of a [federal statute] by the statute's implementing agency"). Moreover, the Act grants HUD considerable discretion to apply the law and decide issues of fact when it determines whether a particular entity is a "general purpose political subdivision of a State," a "consortium of political subdivisions," or an "agency or instrumentality" that HUD may designate as a participating jurisdiction. See 42 U.S.C.A. §§ 12704(1), (3)-(4); 12746 (West 2013). Therefore, this office cannot advise that, as a matter of law, a council of governments is a unit of general local government for purposes of the federal HOME Investment Partnership Program.

SUMMARY

This office cannot advise that, as a matter of law, a council of governments is a unit of general local government for purposes of the federal HOME Investment Partnership Program.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee

[1] See Letter and Brief from Honorable Renee Ann Mueller, Washington Cnty. Att'y, to Honorable Greg Abbott, Tex. Att'y Gen. (July 24, 2013), http://www.texasattorneygeneral.gov/opin ("Request Letter" and "Brief," respectively).

[2] Because you ask a question of federal law, we do not resolve a COG's status for state law purposes. However, a Texas Department of Housing and Community Affairs ("TDHCA") rule pertaining to community affairs programs defines "unit of general local government" as a "unit of local government which has among other responsibilities, the authority to assess and collect local taxes and to provide general governmental services." 10 TEX. ADMIN. CODE § 5.2(b)(69) (2013). Thus, this definition excludes COGs because chapter 391 denies them the power to tax. See TEX. LOC. GOV'T CODE ANN. § 391.011(a) (West 2005). No other TDHCA rule, statute, or judicial opinion of which we are aware defines "unit of general local government," "general purpose local government," or any other comparable term.

[3] As you note, being a unit of general local government is but one of the requirements for HUD to designate an entity as a participating jurisdiction in the HOME Program. Brief at 2; 42 U.S.C.A. § 12746 (West 2013).