Case Information
*1 - _. -
Honorable Cleveland Davis
County Attorney This bpinion Overrules Brazoria County in part Opinion #O-5192 Angleton, Texas
Dear Sir: Opinion No. 0-5192-A
Re: Are the officers of the Brazo8 River Harbor Navigation Die- trict of Brazoria County, Texas, to be elected by the qualified voters of such district or ap- pointed by the commiljsidners' court of Brazoria County, T$xas?
We have your letter of recent date requeeting us to reconsider our opinion No. O-5192.
Your letter of April T9 1943, requesting the opinion of this depart- ment on the above stated question reads in part as follows:
"Will you please advise me a8 to whether or not the offi- cers of the Brazes River Harbor Navigation District of Brazoria County, Texas, are to he elected by the qualified voters of such district or appointed by the Commissioners' Court of Brazoria County, Texas.
"For your information this district was organized a number of years ago and, therefore, any provision in the law for the appointment of the officers for the first term of office would not be under consideration here. It has been the practice of the Commissioners' Court of Brazoria County, Texab, since the organization of this district to appoint all of the officers, including the Chairman of such district."
The Brazes River Harbor Navigation District of Brazoria County, Texas, was one of the defendants in the case of Smith et al. v. Wileon et al., 13,Fed. (2d) 1007., With reference to the constitutional and statutory provisions under which said district was created we quote from the above mentioned case a.8 follow:
"Section 59, art. of the state Constitution, is the expression of the public policy of this state for the conserva- tion and development of all its natural resources, including the
Honorable Cleveland Davis, Page 2 (0-5192-A)
navigation of its many inland waters, and the utilization of its long and favorable coast line. It declarea:
"'There may be created within the state of Texas, or the State may be divided into, much number of conservation and reclamation districts ae may be determined to be enaential to the accompli&ment of the purposes of thir amendment to the Constitution, which district shall be govermental agencies and bodies politic and corporate with such power6 of govern- ment and with the authority to exercise such righte, privi- leges and functions concerning the subject-matter of this amendment a8 may be conferred by law.'
"The Leglelature la authorized and directed to make pro- vision for the creatlon,of the district and the levy and col- lection of the taxes.
"To effectuate this constitutional mandate, the Thirty- Ninth Legislature enacted the law under which the navigation district wa8 formed. This act, chapter 5 of the Act.6 of the Thirty-Ninth Legislature, also found in R. S. 1925, fully and in detail sets out the procedure under which this dis- trict was organized, providea for a hearing before and judg- ment by the commissioners' court on petition, which hearing should be had after notice, at which hearing those for and against the district had the rig&t to contest or to contend for its creation, and offer testimony in favor or against the district, to show that the proposed improvement or im- provements would or would not be of any public benefit, and would or would not be feasible or practicable, and a8 to any other matters pertaining to the district.
"It provides that the county commissioners' court shall have exclusive jurisdiction of the hearing, and shall deter- mine all contests and objectiona, and all matters pertaining to the creation of the district, and all judgments or de'ci- sions rendered by the court shall be.final, and it expressly authorizes that court to adopt, reject, or change, a8 it deemed best, the proposed boundaries.
"It provides minutely and in detall.for the holding of an election, for canvassirig and declaring the result of it, the issuance of bonds, and the levy of ad valoremtaxea to pay therefor, and specifically authorizes the dietrict to cooperate with the government of the United States in mat- ters of any proposed development."
Chapter 5 of the Acts of the Thirty-ninth Legislature is brought forth in Vernon's Annotated Civil Statutes as Article 826311.
Bonorable Cl.evele& ~avle, Page 3 (O-5192-A)
3.x opIn&xx Eo. o-5:92 th.L.s departme& held tht the nfavigaticm $nd canal comisa~oners of e.aldn@gtttimdbvtrlct +muJ.dbe appoluted by the comiesionersl court of Bramria Comty.
Section u~of Artide 8263k, ~emanfe Annctated Civil Statutea eo provided. However, said Secthu lj ~88 e.wniied by Hn'zse Bill Ho. 2c& Acta of the Forty-first Legielatum, Fir& GaLLed Seeslou, 1929. Howe Bill RCA 2Ok, eUpre, became effective Eay 23, 19.29. *
Section of House BILI. Eo. 2&', aupra, (Sect&u Article &&a, Vernonla Anuotated Civil Statutes) prixM.es as follms:
"Aftertbe establislmeut of aryEavig&ouDistrfct 86 hereiupmvMedtheComleisslcalers ' 3nz-t crEavl.gatiauBoard as the case maybe, &all appoi;it tk-zee Eavi&io.u aud Cezml CommIssionera all, of x+om ahall be resfdeuts of the proposed EavlgationDiatrlctwho sba.lJ. be~ehoLdprope&ytarpsying I voters ofthe county whose duties ahall be a8 hereluafter provided, aud who shall each receive for their senricea much ' compensation a8 may be fIxed by the Comissiouers' Court of t~.colmtyexercisingjurls~di~ iuoreating ea5iDistriot. SaidEavigatiou a@ Canal CommIssiouers $&l hold office for a tern of two years and until the:= succe88ors kave been elected and qualified, unless soouer removed by 'a uuaulmoua vote of the COunty Comlssioner6 or Ikyigation Board as the case may *.for mal-feamuoe or non-feasauoe ia office, after a hearing dnly had accordiugtd law, fMv~-which judgmeut of .removal appeal. may be had to the X&rid Court of the Cou+ty In which such CoamI.ssiouers reside aud sa'd Court shall pro- :. ceedtotrythe case deumo. Smi~ Eavigatiou and Cam1 Com- missioners shall be elected on,the first Saturday In July in: .each odd year beg- Hth the first Saturday iu July, 1929, and shall bold office fcr.two years aud until their6uccessors are elected aud qualified, euch election. to be ordered by the Eavigation end canal Commiesiauers, aad uotice thereof-shall be- given by the Secretaryof such Connaissiou by posting or.
publishing the &me for at least twenty (20) days prior.to such election, and sha.il other&se be held accord3zg to the General Election Lawa of the State of Texas. .Should any va- caucy occur tbro~& the death or resignation or otherwise of any Commissioner the same &+I. be filledbythe rmaiuiug members of such Navtgation aud Cam1 Comrcissiou; provided that if two or more vaxucies occur at the same time a special election may be called by a petitLon~~si@.u?d by f&y (50) resident property taxpaylzg voters after notZce duly giveu by publishing or pcstiug for at least twenty (!ZQj days prior to such election wh.l.ch petitioh shall contaiu the judges ami clerks for such eleti,lou who Bhsx jointly CaniraSS the returnS ana declare the results of @uch election aud issue certificates of electian to the auc~essfub candidate whZ.ch election shall
: *4 Honorable Cleveland Davis, Page 4 (O-5192-A)
otherwlae be &eld according to the Gsneral Election Iaws of the State of Texas; provl&ed further tkt this Section shal& not ap- ply to Navigation Districts created pursuant to Section of Article 3 of the Comtitutioq of Texas, or to any such District converted or transformed into Navigation Distrlda under Section 59 of Article 16 of the Constitution of Texas, by virtue of Sec- tlonsland2 ofthiaAct,butthe NavigatiansndCanal Commie~ 'aioners of such Districts ebd.l be appolntkd by the Navigation Board or the Conmlssionere' Court of the &u&y having juriedlc- flon as heretofore provldedby law."
Section 7 of said Home Blli No. 204 (Section 7, Article 82638, Ver- non's Annotated Civil Statutes) provides:
"The provisions ofthls Act sballbe c+udative of al& other Acts heretofdre e&ted .i,nto Law with reference to the organlzatlon a3d operation of Navlgatloti Dlstrlcte. & case of any conflict the provisions of this Act sh+llcontrol."
Section I6 of Article 6263h;Vernap's Annotated civil Statutes pro- vides: .
"Said com$ssloners shall also organize by electing one. of t&&r number chairplan and one secretary, and two of the comlssloners shall const&tute a quorum, and a concurrence of two shall be sufficient in all matters perta- to t@e business of said district."
It is noted that you state * effect in your letter that the com@s- sloners' court appoints the chairman of such district. With reference to the foregoing statements, it ls'our opinion that un&er Section 16 of Artlc&e 8263h, supra, that the cbalrman should be selected as provided in sala Se&loll 16 and that the comlssloners' court has no authorlty~to designate the c&lman.
In 'view of Section 5, House Bill No. 204;supra, (Article &63a Vernon's Annotated Civil Statutes) amending Section 13 of Article 826jh, Ger- non's Annotated Civil Statutes, It As our opinion that the~navigatlon and Canal' comissioners of the Brazes River Harbor Navlgatl~n District of Brazoria Cpuntq, Texas, should be elected. by the qualified voters of such district as required and authorized bySection 5 of House Bill MO. 204, supra, (Section 5, Article '8263a, Vernon's Annotated Civil Statutes).
Therefore, .our ~piniox~ No. O-519; 1s hereby expressly overr@.ed in- .
sofar as it conflicts with this opinion.
Yours very tmly APPROVED MAY 6, 1943 APPROVED A!TTORNEX OENERALOFTHIAS /s/ OeraLd c. ifagil &IKION By /s/.Arde&l Williams A!lToRNNY -L OF Twi coMMYlmm Ardell Wil&i~ &3s1stant BY /s/ GPB . AW:mp:lni CHAmW