The Honorable James U. Cross Executive Director, Texas Offshore Terminal Commission 701 Congress Avenue, Suite 302 Austin, Texas 78701 Opinion No. H- 178

Re: Authority ofthe Texas Offshore Terminal Commission to develop
aplan for onshore facilities to accommodate super-tankers

Dear Mr. Cross:

You have requested our opinion as towhether it is possible to develop
aplan for onshore facilities to accommodate super-tankers under the mandate given your Commission by Chapter 12ofthe Texas Water Code (Acts 1972, 62nd Leg., 4th.C. S., ch. 14, p. 17).
An answer to your question require,s an understandirgof the nature ofthe Texas Offshore Terminal Commission.
The Legislature plainly stated its policy and intention in $12. 001 ofthe Water Code:

“It is the determination, policy and intent ofthe

Legislature that the first priority of~theTexas Offshore Terminal Commission is to develop aplan including the site location for an offshore terminal to accommodate supertankers at the earliest possible time. ” (Emphasis added)

After calling for the creation ofthe Commission, andproviding for its membership and operation, the Code in $$12. 061 and 12.062, sets out the general responsibilities to be implemented:

p. 812The Honorable James U. Cross, page 2 (H-178)

“Section 12.061. InGeneral
“The commission shall formulate general policy to govern the agency and its activities. The commission has the powers and duties specifically prescribed by this chapter and all other powers necessary or convenient to carry outits responsibilities.

“Section 12.062. Development ofPlan

“(a) The commission shall develop aplan leading to the development ofdeep draft harbors or terminals, eit&r by the State of Texas, private interests or bya combination ofpublic and private entities. The plan shall contain specific means bywhich the terminals may befinanced and shall provide for cost studies as to the optimum development. The plan shall further contain, butnot be limited to-proposals for theuse offacilities developed; sites considered for thefacilities; design of the facilities; proposals for operating the facilities and for the maintenance of thefacilities. The plan shall also contain a separate proposal for steps to be taken to insure the optimum protection ofthe environment. The plan shall include consideration ofthe legal jurisdiction for construction, maintenance and operation of thenterminal facility; the legal aspects offinancing and ownership ofthe facility: determination ofresponsibility and limits of liability for spills, pollution-and other involvements resulting from operation ofthe terminal; necessary legislation to create an offshore terminal authority or other entity as avehicle for the operation of the terminal: and any other important legal problems and considerations which must be answered before such an offshore terminal should be constructed. The plan shall also include socio-economic data to determine what this facility will dofor the State’s economy, what will happen tothe economy of theState iftheport is not built, and

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what will be the dollars-and-cents benefits that the facility will bring about and how these will compare to its cost.

“(b) The commission t-naycontract with local governments, regional planning commissions, planning agencies, and shall contract will colleges and universities in the state in preference to other sources when such colleges or universities have abetter or equal capacity to render the service; and may further consider and contract with any other qualified and competr.nt persons toassist the commission in developing and preparing the plan, but design and construction ofthe offshore port would reside within the private sector. This phi,losophy is in keeping with the legislative intent expressed in HCR 138, 62nd Legislature, Regular Session, 1971.”
The Commission is instructed to carry out research “it considers advisable and necessary” (§12.063), to coordinate its work with other agencies having complementing or overlapping interests [$12.064(a)], and to make “necessary or convenient” contracts (812.Ob5).
The ultimate responsibility of the Commission is spelled outin $12. Obb:

“(a) When the commission has prepared and examined the completed plan it shall hold such public hearings as may be necessary concerning the plan to determine ifall aspects have been given adequate consideration. After the hearing the commission may amend the plan ifinits opinion there is a necessity for such action and shall formally adopt the plan.
l’(b) The commission shall present the plan tothe first session ofthe Legislature occuring after the adoption ofthe plan. The commission shall also cause to be prepared such suggested legislation as may be necessary and desirable for the implementation ofthe plan. ”

p. 814The Honorable James U. Cross, page 4 (H-178)

Our consideration ofthe Act leads us to the conclusion that the Legislature
was nrimarilv concerned with having the Commission develop plans for an offshore terminal. If, as a result of its research, the Commission should determine that an offshore facility would not be physically possible, or would be economically unsound, or that an onshore facility would have advantages far outweighing those ofan offshore terminal, the plan submitted,b.y the Commission may include recommendations with reference to an onshore as well as an offshore terminal.

In512.067,. the Savings Clause ofthis Act, it is stated:

“Nothing her,ein shall be construed inany way tolimit, impair, change or curtail thepower, authority and activities of existing port authorities, harbor authorities or navigation districts inthe State ofTexas, but all power, authority and activities now held and exercised by those various authorities or districts in the State ofTexas are hereby specifically reserved tothem; and none ofthe statutory law pertaining to those existing authorities or districts is amended, changed or repealed by the provisions hereof. ”
Since there are existing navigation districts and port authorities in this State which have the power to plan, construct, maintain and operate port facilities onshore (see §560.32, ,bO.101, et seq., Texas Water Code, V. T. C.S.), itwas apparently contemplated by the Legislature that they should continue to exercise these powers and duties notwithstanding the creation ofthe Texas Offshore Terminal Commission. The Commission was, inour opinion, created by the Legislature primarily to fill thevoid inthalaw with respect tothe planning for offshore facilities which could notbe undertaken by existing port authorities, navigation districts, and harbor authorities, although itdid not preclude the Commission’s consideration ofonshore facilities where interference with existing authorities and districts wou.Ldnot result. Section 12.064 directs cooperation with such agencies.
SUMMARY
The Texas Offshore Terminal Commission is charged with theprimary responsibility of developing plans for

p. 815The Honorable James U. Cross, page 5 (H-178)

offshore terminal facilities. If, as a result ofits research, the Commission should determine that an offshore facility would not bephysically possible, or would be economically unsound, or that an onshore facility would have advantages far outweighing those ofan offshore terminal, the plan submitted bythe Commission may include recommendations with reference to an onshore as well as an offshore terminal.
Very truly yours,

Attorney General of Texas
APPROVED:

DAVID M. KENDALL. Chairman

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