- _. - 

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.8 follow: 

"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 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 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.6 of 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-5:92 th.L.s departme& held tht 

canal comisa~oners of e.aldn@gtttimdbvtrlct +muJ.dbe 

comiesionersl court of 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& GaLLed Seeslou, 1929. Howe Bill RCA 

2Ok, eUpre, became effective Eay 23, 19.29. * 

Section 5 of House BILI. Eo. 2&', aupra, (Sect&u 5, 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 

CommIssionerall, 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 Commissioners 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 vacaucy 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 

: 
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 apply to Navigation Districts created pursuant to Section 52 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 Sectlonsland2 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 juriedlcflon as heretofore provldedby law." 

Section 7 of said Home Blli No. 204 (Section 7, Article 82638, Vernon'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." 

vides: . 

Section I6 of Article 6263h;Vernap's Annotated civil Statutes pro- 

"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@ssloners' 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, Gernon'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. 

APPROVED MAY 6, 1943 APPROVED 

Yours very tmly 

A!TTORNEX OENERALOFTHIAS 

/s/ OeraLd c. ifagil 

A!lToRNNY -L OF Twi 

&IKION By /s/.Arde&l Williams 

coMMYlmm 

BY /s/ GPB 

Ardell Wil&i~ 

&3s1stant 

AW:mp:lni CHAmW .