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Honorable Cleveland Davis County Attorney Brazoria County Angleton, Texas

Dear Sir: This bpinion Overrules in part Opinion #O-5192

Opinion No. 0-5192-A Re: Are the officers of the Brazo8 River Harbor Navigation Dietrict of Brazoria County, Texas, to be elected by the qualified voters of such district or appointed 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 department on the above stated question reads in part as follows:

"Will you please advise me a8 to whether or not the officers 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.8follow:

"Section 59, art. 16, of the state Constitution, is the expression of the public policy of this state for the conservation and development of all its natural resources, including theHonorable 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 government and with the authority to exercise such righte, privileges and functions concerning the subject-matter of this amendment a8 may be conferred by law.'

"The Leglelature la authorized and directed to make provision for the creatlon,of the district and the levy and collection of the taxes.

"To effectuate this constitutional mandate, the ThirtyNinth Legislature enacted the law under which the navigation district wa8 formed. This act, chapter 5 of the Act.6of the Thirty-Ninth Legislature, also found in R. S. 1925, fully and in detail sets out the procedure under which this district was organized, providea for a hearing before and judgment 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 improvements 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 determine all contests and objectiona, and all matters pertaining to the creation of the district, and all judgments or de'cisions 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 matters 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-5:92th.L.s

departme& held tht canal comisa~onersof e.aldn@gtttimdbvtrlct +muJ.dbe comiesionerslcourtof Bramria Comty. the nfavigaticm $nd appoluted

by the

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& GaLLedSeeslou, 1929. 

### Howe Bill RCA 2Ok, eUpre,

becameeffective

Eay 23, 19.29. 

### *
Section

5 of HouseBILI.

Eo. 2&', aupra, (Sect&u 5, Article&&a, Vernonla

Anuotated

Civil Statutes)

prixM.es

as follms:

"Aftertbe establislmeut of aryEavig&ouDistrfct 86 hereiupmvMedtheComleisslcalers ' 3nz-tcrEavl.gatiauBoard as the casemaybe, &all appoi;it tk-zee Eavi&io.u aud Cezml CommIssionera

ll, of x+om ahallbe resfdeuts of the proposed EavlgationDiatrlctwho sba.lJ. be~ehoLdprope&ytarpsying I votersofthe county whose dutiesahall

be a8 hereluafter provided,

aud who shalleach receivefor their senricea much ' compensation

a8 may be fIxedby the Comissiouers' Court of t~.colmtyexercisingjurls~di~ iuoreating ea5iDistriot. SaidEavigatiou

a@ CanalCommIssiouers $&l hold officefor
a tern of two yearsand until the:= succe88ors kavebeen elected

and qualified,

unless soouerremoved by 'a uuaulmoua vote of the COuntyComlssioner6 or Ikyigation Boardas the case may *.for mal-feamuoe or non-feasauoe ia office,

after
a hearingdnlyhad accordiugtd law, fMv~-which judgmeut

of .removal

appeal. may be had to the X&rid Court of the Cou+ty In which suchCoamI.ssiouers resideaud sa'dCourt shallpro- :. ceedtotrythe case deumo. Smi~ Eavigatiou and Cam1 Commissioners

shall be electedon,thefirst Saturday In July in: .each odd yearbeg- Hth the first Saturday iu July, 1929, and shallbold officefcr.twoyearsaud untiltheir6uccessors
are elected

aud qualified,

euch election.

to be ordered

by the Eavigation

end canalCommiesiauers, aad uoticethereof-shall be- givenby the Secretaryof such Connaissiou by postingor. publishing

the &me for at leasttwenty (20)daysprior.to such election,

and sha.il

other&se be held accord3zg to the General

Election

Lawa of the State of Texas. .Should any vacaucyoccurtbro~& the death or resignation or otherwise

of any Commissioner

the same &+I. be filledbythe rmaiuiug membersof suchNavtgation aud Cam1 Comrcissiou; provided

that if two or more vaxucies occur at the sametime a special election

may be called

by a petitLon~~si@.u?d by f&y (50) resident

property

taxpaylzg

votersafternotZceduly giveuby publishing

or pcstiugfor at least twenty (!ZQj daysprior to such election

wh.l.ch petitiohshall contaiu the judgesami clerksfor such eleti,lou who Bhsx jointly CaniraSS the returnS ana declare

the resultsof @uch election aud issue certificates of electian

to the auc~essfub

candidate

whZ.ch electionshall

:Honorable Cleveland

Davis,Page 4 (O-5192-A)

otherwlae

be &eld according

to the Gsneral

Election

Iaws of the Stateof Texas;provl&ed further

tkt this Sectionshal¬ apply to Navigation

Districts

created

pursuant

to Section

52 of Article3 of the Comtitutioq of Texas, or to any suchDistrict converted

or transformed

intoNavigation

Distrlda under Section 59 of Article16 of the Constitution of Texas,by virtueof Sectlonsland2 ofthiaAct,butthe NavigatiansndCanalCommie~ 'aioners

of suchDistricts

ebd.lbe appolntkd

by the Navigation Board or the Conmlssionere' Court of the &u&y havingjuriedlcflon as heretofore

provldedby law."
Section

7 of saidHome Blli No. 204 (Section 7, Article82638,

Vernon'sAnnotated

Civil Statutes)

provides:

"Theprovisions

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."

vides:

. SectionI6 of Article6263h;Vernap's Annotated

civil Statutes

pro-

"Said com$sslonersshallalso organize by electing

one. of t&&r numberchairplan and one secretary, and two of the comlsslonersshall const&tute a quorum,

and a concurrence of two shall

be sufficient

in all matters

perta- to t@e businessof said district."

It is notedthat you state * effectin your letterthat the com@ssloners'

courtappoints

the chairman

of such district. With reference to the foregoing

statements,

it ls'ouropinion

that un&er Section

16 of Artlc&e8263h, supra,that the cbalrman should be selected

as providedin sala Se&loll16 and that the comlssloners'courthas no authorlty~to designate

the c&lman.

In 'view

of Section5, HouseBill No. 204;supra, (Article &63a Vernon's

Annotated

Civil Statutes)

amending

Section13 of Article826jh,Gernon'sAnnotated

Civil Statutes,

It As our opinion

that the~navigatlon and Canal' comissionersof the BrazesRiver HarborNavlgatl~n District

of Brazoria

Cpuntq, Texas, should

be elected.

by the qualified

votersof such district as required and authorized

bySection 5 of HouseBill MO. 204, supra, (Section 5, Article '8263a, Vernon's

Annotated

Civil Statutes).
Therefore,

.our ~piniox~

No. O-519; 1s herebyexpressly overr@.ed

in-

. sofaras it conflicts with this opinion.

APPROVED

MAY 6, 1943 APPROVED Yoursvery tmly A!TTORNEX

OENERALOFTHIAS /s/ OeraLd c. ifagil A!lToRNNY

-L OF Twi &IKION By /s/.Arde&l Williams coMMYlmm BY /s/ GPB ArdellWil&i~ &3s1stant AW:mp:lni CHAmW .