DAN MORALES 

ATTORNEY GENERAL 

QBffice of tip I?lttornep @enera 

Btate of aexae 

August 12,1992 

Honorable Mike Driscoll 

Harris County Attorney 

1001 Preston, Suite 634 

Houston, Texas 77002-1891 

Opinion No. DM-150 

Re: Whether Harris County may, for 

purposes of floodplain management, 

regulate the building of structures over 

waterways within the jurisdiction of the 

Port of Houston Authority (RQ-294) 

Dear Mr. Driscoll: 

You have requested our opinion as to whether Harris County may, for 

purposes of floodplain management, regulate the building of structures over 

waterways within the jurisdiction of the Port of Houston Authority. 

The Port of Houston Authority (hereafter the “authority”) was created in 

1927 as the Harris County Houston Ship Channel Navigation District of Harris 

Comty, Texas.’ Acts 1927,4Oth Leg., ch. 292, at 437-40; Acts 1927, 40th Leg., 1st 

C.S., ch. 97, at 256-57. Although the authority was originally established as a 

navigation district under article III, section 52 of the Texas Constitution, a 1957 

statute provided that it has all powers conferred upon those districts originally 

organized under article XVI, section 59. Acts 1957,55th Leg., ch. 117, at 241,247. 

The jurisdiction of the authority extends to “all the submerged lands lying 

under.. . all.. . streams . . . tributary to the Houston Ship Channel.. . and all other 

tidal flats or overflow land adjacent to or appurtedant to [such] streams.. . .” Acts 

1927,4Oth Leg., ch. 292, at 438. The purpose of the authority is declared to be 

the development of deep water navigation and the improvement 

of rivers, bays, creeks, streams, and canals within or adjacent to 

such District, and.. . construct[ion] and mainten[ance of] canals 

or waterways to permit of navigation or in aid thereof, and for 

the purpose of and authority to acquire, purchase, undertake, 

‘The. name of the district was changed to the Port of Houston Authority in 1971. Acts 1971, 

62d Leg., ch. 45 at 79. 

p. 786 
Honorable Mike Driscoll - Page 2 W-150) 

construct, maintain, operate, develop, and regulate wharves, 

docks, warehouses, grain elevators, bunking facilities, belt 

railroads, floating plants, lighterage, lands, towing facilities, and 

all other facilities or aid incident to or necematy to the 

operation or development of ports or waterways within said 

District and extending to the Gulf of Mexico. 

Acts 1927,4Oth Leg., ch. 292, at 438. 

Subchapter C of chapter 60 of the Water Code. which deals with navigation 

districts, is applicable to any navigation district “not participating with the United 

States in a navigation project.” Water Code P 60.031. Section 60.043 thereof 

provides: 

The commission [of the navigation district] shall have absolute 

control over channels, or other waterways within the corporate 

limits of the district and turning basins. yacht basins, and storage 

basins. 

By virtue of this provision and the various special statutes dealing with the 

authority’s powers, it seems clear that the authority has exclusive jurisdiction over 

the building of structures over waterways within its geographical limits. 

Section 240.901. Local Government Code, provides, however, in pertinent 

part: 

(a) Recognizing the burden on the nation’s resources, 

congress enacted the National Flood Insurance Act of 1968, 

under which flood insurance can be made available through the 

coordinated efforts of the federal government and the private 

insurance industry by pooling risks and by the positive 

cooperation of state and’ local government. The purpose of this 

subchapter is to evidence a positive interest in securing flood 

insurance coverage under the federal program.. . and to 

encourage sound land use by minhkiq exposure of property to 

flood losses. 

(b) A axmty bordering on the Gulf of Mexico or on the 

tidewater limits of the gulf may determine the boundaries of any 

p. 787 
Honorable Mike Driscoll - Page 3 m-150) 

flood-prone area of the county. The suitability of that 

determination is conclusively established when the commissioners court of a county adopts a resolution finding that the 

area is a flood-prone area 

(c) The commissioners court may adopt and enforce rules 

that regulate the management and use of land, structures, and 

other development in a flood-prone area of the county in order 

to reduce the extent of damage caused by flooding. The matters 

to which the rules may apply include: 

. . . . 

(2) the minimum elevation of a structure permitted to 

be constructed in the area 

Local Gov’t Code 0 240.901(a),(b),(c)(2). These provisions are applicable to Harris 

County, which has a part of its border on Galveston Bay. You indicate that, 

pursuant thereto, the commissioners court of Harris County in 1985 adopted 

regulations for floodplain management. Harris County is at present designated by 

the federal government as the floodplain administrator for the area within its 

geographical boundaries. Section 16.315 of the Water Code, on the other hand, 

authorizes all political subdivisions, of which the authority is one, to “take all 

necessary and reasonable actions to comply with the requirements of the National 

Plood Insurance Program.” 

Although, as we have indicated, the authority has exclusive jurisdiction over 

the building of structures over waterways within its geographical limits, Harris 

County is granted specific authority, under section 240.901, Local Government 

Code, to regulate the elevation of structures within the geographical boundaries of 

the authority for the limited purpose of floodplain management. Thus, the authority 

has the more specific statute with respect to geographical extent, while Harris 

County has the more specific statute with regard to subject matter. In such 

ciramutances, we believe that the statutes can be harmonized in such a manner that 

Harris county is empowered to regulate the building of structures over waterways 

within the authority’s jurisdiction to the extent necessary to comply with the 

requirements of the National Flood Insurance Program, Section 16.315 of the 

Water Code supports this conclusion by admonishing the authority to “take all 

necessary and reasonable actions to comply with the requirements of the National 

Flood Illsurance Program.” 

p. 788 
Honorable Mike Driscoll - Page 4 m-150) 

SUMMARY 

Han% County is authorized to regulate the building of 

structures over waterways within the jurisdiction of the Port of 

Houston Authority to tbe extent necessary to comply with the 

requirements of the National Flood Iusurance Program. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARYKELLER 

Deputy Assistant Attorney General 

RBNEAHIcKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

p. 789