Office of the Attorney General — State of Texas John Cornyn The Honorable Jill Cornelius Matagorda County Attorney 1700 Seventh Street, Room 305 Bay City, Texas 77414-5034
Re: Whether the Port of Bay City Authority of Matagorda County is authorized to accept the conveyance of certain easements from the United States Army Corps of Engineers for the purpose of conveying them to the private property owners whose fee interests are encumbered by the easements (RQ-0143-JC)
Dear Ms. Cornelius:
On behalf of the Port of Bay City Authority of Matagorda County (the "Port Authority"), you ask whether the Port Authority is authorized to accept the conveyance of certain easements from the United States Army Corps of Engineers (the "Corps") and whether the Port Authority may in turn convey the easements to the private property owners whose fee interests are encumbered by the easements. You also ask about the procedures and requirements applicable to the conveyance of interests in real property by the Port Authority. We conclude that the Port Authority, a special purpose district whose powers are limited to those expressly delegated to it by statute or clearly implied from its express powers, is not authorized to accept the conveyance of easements from the Corps for the purpose of conveying them to the private property owners whose fee interests are encumbered by the easements. Because we conclude that the Port Authority is not authorized to acquire the easements for this purpose, we do not address your questions about whether and how the Port Authority may convey the easements to the property owners.
You relay the following facts: In the 1960's, Matagorda County acquired and transferred to the Corps four right-of-way easements that allowed the Corps to construct, maintain, or improve the Colorado River channel of the Gulf Intercoastal Waterway. The easements give the Corps the right to enter upon, dig or cut away and remove all or a portion of the east bank of the Colorado River for the purpose of deepening and widening the river channel for navigation. The fee interest in the affected real estate has since been subdivided. There are now as many as 180 private property owners whose fee interests are encumbered by the easements. The property owners have asked the Corps to release and/or convey the easements. The Corps would like to convey the easements to the Port Authority for disposition. See Letter from Honorable Jill Cornelius, Matagorda County Attorney, to Honorable John Cornyn, Texas Attorney General, at 1-2 (Nov. 3, 1999) (on file with Opinion Committee) [hereinafter "Request Letter"].
You ask a number of questions, the first of which is whether "the Port Authority [has] the authority to accept the conveyance from the Corps."Id. at 2. We conclude that the Port Authority is not authorized to accept conveyance of the easements from the Corps for the purpose of returning them to the property owners.
You inform us that the Port Authority is a navigation district created under article
Under chapter 63, the purpose of a self-liquidating navigation district is to make improvements for:
(1) the navigation of inland and coastal water;
(2) the preservation and conservation of inland and coastal water for navigation;
(3) the control and distribution of storm water and floodwater of rivers and streams in aid of navigation; or
(4) any purpose stated in Article
XVI , Section59 , of the Texas Constitution, necessary or incidental to the navigation of inland and coastal water.
Tex. Water Code Ann. §
The Port Authority is not expressly authorized to accept the conveyance of an interest in land for the purpose of returning it to a private property owner nor may this authority be implied. Again, the express provisions of chapter 63 authorize the Port Authority to acquire "property of any kind necessary for improvements contemplated by this chapter,"id. § 63.155, or land "incident to or necessary in the proper operation and development of ports and waterways in the district," id. § 63.153(3). Your letter does not indicate that acquisition of these easements is necessary for improvements contemplated by chapter 63 or incident to or necessary in the proper operation and development of ports and waterways.
Furthermore, we see no basis for concluding that this authority may be implied. The purpose of a navigation district is to make improvements for the navigation of inland and coastal water; the preservation and conservation of inland and coastal water for navigation; the control and distribution of storm water and floodwater of rivers and streams in aid of navigation; and any purpose necessary or incidental to the navigation of inland and coastal water as provided in article XVI, section 59. Seeid. § 63.152. Acquisition of these easements does not appear to be indispensable to the accomplishment of the purposes for which the Port Authority was created. See Tri-City Fresh Water Supply Dist.,
Finally, we note that you suggest that questions of fact may hinder this office from ultimately resolving whether the Port Authority is authorized to accept conveyance of the easements. See Request Letter at 3 ("Whether the property, i.e. the easements, are being acquired for improvements contemplated by the district is a fact question which is not resolved in the attorney general [opinion] process. The Port Authority can make the determination of whether the property is being acquired for improvements contemplated by [the Water Code]."). As you have not indicated that the Port Authority would accept the conveyance of the easements for any purpose other than to act as a conduit between the Corps and the property owners, we do not see any fact question hindering resolution of this issue.
In conclusion, the Port Authority, a special purpose district with limited powers, is not authorized to accept the conveyance of easements from the Corps for the purpose of returning them to private property owners. Given our answer to this threshold issue, we do not address your remaining questions.
Yours very truly,
JOHN CORNYN Attorney General of Texas
ANDY TAYLOR First Assistant Attorney General
CLARK KENT ERVIN Deputy Attorney General — General Counsel
ELIZABETH ROBINSON Chair, Opinion Committee
Mary R. Crouter Assistant Attorney General — Opinion Committee