January 7, 1969

Honorable Bill Clayton Chairman, House Interim Water Study Committee HouseChamber, Capitol Station Austin, Texas 78711 Opinion M-330 Re: Respons1billty on the Houston Ship Channel for fire, safety, police, Dear Mr. Clayton: pollution, etc.

Onbehalf of the House Interim Water Study Committee, you have re uested our opinion as to whatagencies of government city,

4 county or navigation district) have responslbility on the Houston ship channel for fire, safety, police, pollution, etc. Youask whether these responsibilities fall upon the Port Commission, the City of Houston, on Harris County, the Coast Guard, or others connected with the operatioflthere.

Ablanket reply cannot be given, because someof the channel is within the corporate limits of Houston and someof the channel is outside those limits.

First dlscussed 1s the situation for the part of the channel within the corporate limits of Houston.

TheCity of Houston Is a home-rule city and has all of the powers under the Texas Copstitution not prohibited to it by the United States or Texas tions or laws. Civ. App.),Bland vkeC Taylor, 37S.W.2d
ITex. d Tex. 39, 67S.W. 1934I. Police andfire regulations or ordinances fically provided for by Art. 1175, Vefnonls Civil Subdivisions 27-29, inclusive, andSubdivision 19 by Acts of the 60th Leg., 1967, Chap. 100, page 18aa such which are Constitu- .2sg:033 are speciStatutes, (as amended i9). Bythe

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express provisions of the general law pertaining to navigation districts, (applicable to the one in Harris County), city powers are not diminished by creation of such a navigation district. Art. 8247,Vernon’s Civil Statutes. Also see Articles 1183through 1187,Vernon’s Civil Statutes, which preempt these powers to the City of Houston.

It is our opinion that the general fire andpolice powers on andnear the Houston Ship Channel are vested in the City of Houston andthat it can enact such ordinances as would otherwise be in consonance with the Constitution and laws of Texas andof the United States. FiyAttorney General Opinion M-190, (1968), the navigation district, county, or city could jointly or severally abate water pollution; andthe city or the county can abate air pollution.

Within the corporate limits of Houston the city has jurisdiction ove.r matters of fire, safety, police, pollution, etc. Jurisdiction over navigational matters, such as pilotage, wharfage andregulation thereof throughout the entire area of the channel are confided by lawto the Harris CountyHouston Ship Channel Navigation District, This governmental agency wasfirst created pursuant to general laws relating to formation of a navigation district, and later ratified by special acts of the Texas Legislature. Acts 1927, 40th Deg., 1st C.S., Chapter 97, p. 256; Acts 1957, 55th Leg., R.S., Chap. 117, page 241. Thedistrict’s powers are strictly governmental. For a discussion of the powers of such district, see Jones v. Texas Gulf Sulphur Company, 397 S.W.2d 304, (Tex.Civ.App. 19b5, error ref. n.r.e.). With regard to that portion of the channel outside the corporate limlts of Houston, it becomes necessary to interpret Article 8247134, Vernon’s Civil Statutes, as it applies to the Harris County-Houston Navigation District. Thearticle nurnorts to give navigation districts broad powers over matters of fire, safety, andpolice powers. Weinterpret the language of Section 1of the article to grant those powers, however, only whenthe district owns, operates andmaintains wharves, docks, piers, sheds, warehouses andother similar terminal facilities not situated within the boundaries of any incorporated city, a. Another interpretation could relate the restrictive language, i.e., “not situated within the boundaries, etc.” to the composition of the district, but weare of the opinion that it properly relates to the situs of the terminal facilities. Underour interpretation, then, if the district does not ownor operate terminal facilities at any location it does not have anyof the powers conferred by Article 8247b-1.

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Thecity maynot exercise anyof those powers with respect to any terminal facilities that It might ownor operate within corporate limits, Thedistrict possesses the power conferred by Article 8247b-1only to the extent of its ownership of terminal facilities outside the city corporate limits. TheCounty of Harris’ powers extend through the Commissioners1 Court only to those powers andduties specifically enumerated by the Constitution andStatutes. 15Tex.Jur.2d,Counties, Sec. 35,pages 261-63. Bystatute the county can purchase fire trucks andother fire-fighting equipment. Idem, page 263,note 9, citing Art, 2351a, Art. 2351a-2, Art. 2351a-4; Snellen v. Brazoria County, 224 S.W.2d 305 (Tex.Clv.App. 1949, error ref. n.r.e.). The county only exercises governmental functions andhas no proprietary functions. 15Tex.Jur.2d, Counties, Sec. 80, page 307; Miller v. El Paso County, 136Tex. 370, 150 S.W.,2dlOOq1941). It should be noted that the county powers are more strictly construed than those zranted to incorporated municipalities. Tri-City Fresh Water Supply District No. 2v. Mann, 135Tex. 280, 142SW2d 945 1940); Stratton v. Commissioners1 Court, lj7’S.W. 1170, Tex.Civ.App. 1911, error ref.). It has nogeneralpolice powers, but may enforce state laws in generai, andas a local overnment it can abate air or water pollution. Art. 4 77-5,V.C.S.* 8 Art. 7621d-1, V.C.S; Attorney General Opinion M-190 (1966).

TheCoast Guardregulations mayprovide for any regulations as to fire, safety, etc. cognizable under federal statutes as anadjunct of the exercise of the commerce powers of Congress under Art. I, Sec. 8 of the U.S. Constitution. Oneregu’lation of this type is the prohlbitlon of arc welding,within fifty feet of the waters of the ship channel.

SUMMARY

Under a fact situation wherein the Harris County-Houston Ship Channel,Navigation District does not ownor operate anyterminal facilities within the corporate limits of any city, the city hasjurisdiction within its limits over matters of fire, safety, andpolice power even within the limits of the district. The county mayenforce within the district all state laws. Either the city or the county maybring -1624-Hon. Bill Clayton, page 4 (M-330)

suit under the Clean Air Aot of Texas, 1967, OP under the Texas Water Quality Act of 1967. The district maybring suit under the latter. Thedistrict, pursuant to Art. 8247b-1, V.C.S., hasjurisdiction over fire, safety, and police powers to the extent that it ownsor operates terminal facilities outside the corporate limits of any city. truly yours,

%.%G C. MARTIN rney General of Texas
Prepared by Roger Tyler Assistant Attorney General

APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman Brandon Bickett Alfred Walker John Grace Neil Williams Hawthorne Phillips Executive Assistant

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