                                       @ffice of the Plttornep@herd
                                               Nate   of ‘Qexae
DAN MORALES                                      March 5,1997
 ATTORNEY
       GENERAL

   The Honorable Fred Hill                             Opinion No. DM-434
   Chair, Committee on Urban A%rs
   Texas House of Representatives                      Re: Whether public housing authorities may
   P.O. Box 2910                                       administer federa housing assistance program
   Austin, Texas 78768-2910                            involving payment of rent outaide of their
                                                       geographical boundaries (RQ-710)

   Dear Representative Hill:

           You ask whether public housing authorities established under chapter 392 of the Local
   Government Code have authority to administer federal housing a&stance programs outside of their
   area of operation. Your question arises because the San Antonio Housing Authority and the Bexar
   County Housing Authority administer a housing a&stance program that involves dwelling units
   within the City of Balcones Heights, a general law city in Bexar County incorporated in the 1940s
   and now surrounded by the City of San Antonio.

             Housing authorities were established under state law to provide low income housing in
   conjunction with provisions of the United States Housing Act of 1937,42 USC. $8 1437 etseq.’
   State law permits an authority to “prepare, carry out, acquire, lease, and operate a housing project
   in its area of operation,“2 and to borrow money or accept grants or other fhrancial assistance from
   the federal government for a housing project in its area of operation and comply with conditions
   necessary to receive the assistance.” State law also establishes an “area of operation” for both
   municipal and county housing authorities. For a municipal housing authority, it is the municipality
   for which it was created and the area within tive miles of the municipality’s territorial boundaries that
   is not within the territorial boundaries of another municipality,’ while for a county housing authority
   it is the county in which the housing authority was created, excluding the parts of the county within
   the territorial boundaries of a municipaIity.5




           ‘L4lcalGov’t code g 392.052(t).

           ‘Id. $392.052(a).

           'Id. 5 392,052(f)(1).(3).

           'Id. 0 392.014.

          Vd 8 392.015.
The Honorable Fred Hill - Page 2                        (DM-434)




         A brief submitted on behalf of Balcones Heights states that the Bexar County Housing
Authority and the San Antonio Housing Authority are both operating within the boundaries of
Balcones Heights by administering the federally fimded “section 8” housing assistance program.
“Section 8” refers to a section ofthe revised United States Housing Act, 42 U.S.C. 5 1437c6 which
authorizes housing assistance payments with respect to existing housing. You are specifically
concerned about the “portability” of housing assistance payments as authorized by section 1437qr)
of title 42.’ This section provides in part:

                     (1) Any fhmily assisted under subsection (b) or (o)* of this section may
                receive such a&stance to rent an eligible dwelling unit ifthe dwelling unit to
                which the family moves is within the same State, or the same or a contiguous
                metropolitan statistical area as the metropolitan statistical area within which
                is located the area ofjurisdiction of the public housing agency approving such
                assistance.     .9

                    (2) The public housing agency having authority with respect to the
                dwelling unit to which a family moves under this subsection shall have the
                responsibiity of canying out the provisions of this skbsection with respect to
                the family. IfnopubIic housing agency has aufhoriw with respec to the
                dwelling unit to which a family moves under this subsection, the public
                housing agency approving the assiskmce shall have such reqwrkbili~.
                [Emphasis and footnotes added. ]

The City of Balcones Heights haa not established a public housing agency, and no public housing
agency has authority with respect to dwelling units within its boundaries.

         You argue that the San Antonio and Bexar County Housing Authorities are acting outside
of their areas of operation designated by state statute when they administer assistance payments used
to rent dwelling units in the City of Balcones Heights, and that they are not authorized to implement
this program within the city limits of Balcones Heights. A brief received from the San Antonio
Housing Authority argues that federal law preempts state law and that the San Antonio and Bexar


          6Secticm 8 was added to the Housing Act of 1937 in 1974. Pub. L. No. 93-383. tit II, 5 201(a), 88 Stat 662
(codified as tmxndd at 42 USC. 8 1437f (1974)).

            ‘“‘F’mtability~~
                           allows a housing subsidy pmvided by B housing authority to B low-income family to be used when
the Gaily awws cut ofthe housing mhority’s jurisdiction. See Williams v. Hanover Hous. Auth., 87 1 F. Supp. 527,529
(D. Mass. 1994).

            ‘Subsections (b) and (0) of s&ion 1437f. title 42 of the United States Cede, authcke   the pmvision of housing
assistana    thmugb rental certilicae ad rental vowhem. mqectively.

         9Aneweption provides that a tkmily not living within the jurisdiction of a public bowing agency when it applies
forassi~m~usctheassistanatorentamvcllingunitlocatcdwithinthejurisdictionsavedbythcbwsingagcncy
during the 12-month period beginning with the receipt of a.&tmce.            42 U.S.C. $ 1437@)(l); see o/w 24 C.F.R.
$982.354(b).




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The Honorable Fred Hill - Page 3                         (DM-434)




County Housing Authorities are both authorized by section 1437@)(2) of title 42 to administer its
provisions within the City of Balcones Heights.”

         A rule on section 8 tenant-based assistance promulgated by the Department of Housing and
Urban Development expressly states that the federal law preempts limits on a housing authority’s
jurisdiction established under state law.” The rule, to be codified at section 982.354 of title 24 of the
Code of Federal Regulations, provides in part:

                   (a) When a family moves under portability . . . to an area outside the
              initial’2 HA [Housing Agency] jurisdiction, the initial HA must administer
              assistance for the family if

                        (1)TheunitislocatedwithinthesameStateastheinitialHA...;and

                       (2) No other HA with a tenant-based program has jurisdiction in the
                   area where the unit is located.

                   (b) In these conditions, the family remains in the program of the initial
              HA. The initial HA has the same responsibilities for administration of
              assktance for the thmily living outside the HA jurisdiction as for other families
              ass&d by the HA, within the HA jurisdiction For the purpose of permitttng
              HA administration of program awiistartcefor the fmi& in the area outs&2
              of the HA jurisoktion as defined by State and local law (and thereby to
              satisfv the family ‘s right to portabiliq under federal law), the federal knv
              and this regulation preempt limits on the HA jwisdtction under State and
              local law. @mphasis and footnote added.]

       State law is peqted   under the Supremacy Clause of the United States Constitution” when
Congress, in enacting a statute, has expressed a clear intent to preempt state law.” “Federal


         “The brief of the San Antonio Hoosiog Authority also claims that the Housing Authaity of Eiexar Camty
adnnmstas its section 8 program within the city limits of San Antonio witbout the pamission of the San Antonio Housing
Authority nod that this activity contravenea state law. This matter is not before us.

         “60 Fed. Reg. 34707 (1995) (to be ccditied at 24 C.F.R. 5 982.354).

         %c “initial HA” in portability is “[s]n HA that origimUy sekcted a fan@ that Subsequently decides to move
cut of.   [its] jurisdiction,” or an HA that “absorbed a family that subsequently decides to move out of the jurisdiction of
the absorbing HA.- 60 Fed. Reg. 34697 (1995) (to be codified at 24 C.F.R. 5 982.4).

         ‘3v.s. con3t. at. v&cl. 2.

         “Englishv. GcnemlEk-c.Co., 4% U.S. 72.78-79 (1990). affd, 977 F.2d 572 (4th Ci. 1992). State law is also
preempted yha it is clear, despite the absence of explicit preemptive language, that Cottgms has iota&d, by legislating
~,,~ormW~fi~dofregulsfionsndbasldtnoroomforthestatestoect,sndwhenstatelawactually
                                                                                                         (c.mtinucd...)




                                                           p.   2421
The Honorable Fred Hill - Page 4                    (DM-434)




mgulations have no less preemptive effect than federal statutes.“15 We presume that the federal mle
in question is valid.16 Accordingly, pursuant to the above regulation, the San Antonio Housing
Authority and the Bexar County Housing Authority may administer housing assistance under the
portability program for a dwelling unit in the City of Balcones Heights.

                                             SUMMARY

                   The San Antonio Housing Authority and the Bexar County Housing
              Authority were established under Local Government Code chapter 392 to
              provide low-income housing pursuant to the United States Housing Act of
               1937, 42 U.S.C. @ 1437 et seq. Pursuant to the federal provision for
              “portability” of housing subsidies, 42 U.S.C. 5 1437f(r), the two housing
              authorities may administer housing assistance with respect to dwelling units
              in the City of Balcones Heights, even though Balcones Heights is outside of
              their areas of operation. To the extent that state law limitations on the
              jurisdiction of the housing authorities would prevent them from administering
              this program with respect to units in Balcones Heights, the state law is
              preempted by a federal regulation.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General



         “(...contirmed)
contlicts with federal law. Id.

         ‘5F&lity Fed. Sav. % Loan Ass’n v. de la Cuesto. 458 U.S. 141,152-53 (1982); Cam v. HousingAuth      of the
Ciry ofAustin, 794 S.W.Zd 901,906   (Tex ASP.--Austin 1990, wit denied).

           ‘?IAM J~~.2~AdmitibutiwImv~        160(1994). Adminisbativexul~ andreg~Iationsarep%medtobevtid.
See Fiakli~, 458 U.S. at 153-54 (limited nature of federal court’s inquby with rcspad to qulations intmded to preempt
state law); Alabama Nursing Home Ass ‘n v. Hurrii, 617 F.2d 388,393 (5th Cu. 1980).




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