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 of the Texas 

Offshore Terminal 

Commission to develop 

a plan for onshore facilities to accommodate 

super-tankers 

Dear Mr. Cross: 

You have requested our opinion as to whether it is possible to develop 

a plan for onshore facilities to accommodate super-tankers under the mandate 

given your Commission by Chapter 12 of the 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 

of the Texas Offshore Terminal Commission. 

The Legislature plainly stated its policy and intention in $12. 001 of the 

Water Code: 

“It is the determination, policy and intent of the 

Legislature that the first priority of ~the Texas Offshore 

Terminal Commission is to develop a plan including the 

site location for an offshore terminal to accommodate 

supertankers at the earliest possible time. ” (Emphasis 

added) 

After calling for the creation of the Commission, and providing for its 

membership and operation, the Code in $ $12. 061 and 12.062, sets out the 

general responsibilities to be implemented: 

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

“Section 12.061. In General 

“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 out its responsibilities. 

“Section 12.062. Development of Plan 

“(a) The commission shall develop a plan leading 

to the development of deep draft harbors or terminals, 

eit&r by the State of Texas, private interests or by a 

combination of public and private entities. The plan 

shall contain specific means by which the terminals may 

be financed and shall provide for cost studies as to the 

optimum development. The plan shall further contain, 

but not be limited to-proposals for the use of facilities 

developed; sites considered for the facilities; design of 

the facilities; proposals for operating the facilities and 

for the maintenance of the facilities. The plan shall 

also contain a separate proposal for steps to be taken 

to insure the optimum protection of the environment. 

The plan shall include consideration of the legal jurisdiction for construction, maintenance and operation of 

then terminal facility; the legal aspects of financing and 

ownership of the facility: determination of responsibility 

and limits of liability for spills, pollution-and other 

involvements resulting from operation of the terminal; 

necessary legislation to create an offshore terminal 

authority or other entity as a vehicle 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 do for the State’s economy, what will happen 

to the economy of the State if the port is not built, and 

pa 813 
The Honorable James U. Cross, page 3 (H-178) 

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-nay contract 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 a better or 

equal capacity to render the service; and may further 

consider and contract with any other qualified and 

competr.nt persons to assist the commission in developing and preparing the plan, but design and construction of the 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 (8 12.Ob5). 

The ultimate responsibility of the Commission is spelled out in $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 if all aspects have been given adequate consideration. After the hearing the commission may 

amend the plan if in its opinion there is a necessity for 

such action and shall formally adopt the plan. 

l’(b) The commission shall present the plan to the 

first session of the Legislature occuring after the adoption of the plan. The commission shall also cause to 

be prepared such suggested legislation as may be necessary and desirable for the implementation of the plan. ” 

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

Our consideration of the 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 of an offshore terminal, the plan submitted,b.y the 

Commission may include recommendations with reference to an onshore as 

well as an offshore terminal. 

In 5 12.067,. the Savings Clause of this Act, it is stated: 

“Nothing her,ein shall be construed in any way 

to limit, impair, change or curtail the power, authority and activities of existing port authorities, harbor 

authorities or navigation districts in the State of Texas, 

but all power, authority and activities now held and 

exercised by those various authorities or districts in 

the State of Texas are hereby specifically reserved 

to them; and none of the 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 § 5 60. 32, ,bO. 101, et seq., Texas Water Code, 

V. T. C. S. ), it was apparently contemplated by the Legislature that they should 

continue to exercise these powers and duties notwithstanding the creation 

of the Texas Offshore Terminal Commission. The Commission was, in our 

opinion, created by the Legislature primarily to fill the void in tha law with 

respect to the planning for offshore facilities which could not be undertaken 

by existing port authorities, navigation districts, and harbor authorities, 

although it did not preclude the Commission’s consideration of onshore 

facilities where interference with existing authorities and districts wou.Ld not 

result. Section 12. 064 directs cooperation with such agencies. 

SUMMARY 

The Texas Offshore Terminal Commission is charged 

with the primary responsibility of developing plans for 

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

offshore terminal facilities. 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 of an offshore terminal, the plan submitted by the 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 

p. 816