                                          GREG
                                                0
                              ATTORNEY GENERAL OF TEXAS
                                                     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 counci Is of governments are "units of general local government" for
purposes of the federal HOME In: estment 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.

!d. § 12704(1): see also 24 C.F.R. § 92.2 (2013) (parallel definition in HUD regulations).

        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.texasattomeygeneral.gov/opin ("Request Letter" and "Brief,"
respectively).
The Honorable Renee Ann Mueller - Page 2                   (GA-1037)




       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. !d.
§ 391.001. Chapter 391 establishes COGs as political subdivisions. !d.§ 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. !d.
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 oflaw 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."' Ore/lana-Monson v.
Holder, 685 F.3d 511, 517 (5th Cir. 2012) (quoting Chevron, US.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


         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.' I 0
TEX. ADMIN. CODE 5.2(b)(69) (2013). Thus, this definition excludes COGs because chapter 39 1 denies them the
power to tax. See TEX. Loc. Gov'T CODE ANN. § 391.011(a) (Wesl 2005). No other T HCA 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).
The Honorable Renee Ann Mueller - Page 3           (GA-1037)



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.
The Honorable Renee Ann Mueller - Page 4         (GA-1037)



                                      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.




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
