Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

October 17, 2008

The Honorable Wayne Smith Opinion No. GA-0672
Chair, Committee on County Affairs
Texas House of Representatives Re: Whether the Cedar Bayou Navigation District
Post Office Box 2910 may regulate structures on and near Cedar Bayou
Austin, Texas 78768-2910 in certain circumstances (RQ-0702-GA)

Dear Representative Smith:

You tell us that property owners along the Cedar Bayou are considering developing a
"container-on-barge facility" within the boundaries of the Cedar Bayou Navigation District (the
"District").! You ask about the District's power to regulate or establish a permitting system for
"structures on and near Cedar Bayou" that "may affect water transportation activities within the
District." Request Letter, supra note 1, at 1. You specifically ask us to confirm

that the Cedar Bayou Navigation District under the broad powers
granted to it by the [L]egislature, the constitution, and the laws ofthis
state may proceed with enacting reasonable regulations pertaining to
permitting and/or regulating of structures on and near Cedar Bayou
within the District's boundaries to the extent that the same (i) may
affect water transportation activities within the District; (ii) are
incident to or accommodating ofcommerce or navigation; and/or (iii)
are incident to or necessary in the proper operation and development
of ports and waterways.

Id. at 3.

The District's express statutory powers provide sufficient authority to regulate structures or
establish a permitting system. See Tri-City Fresh Water Supply Dist. No.2 v. Mann, 142 S.W.2d
945, 946 (Tex. 1940) (stating that a district created under article XVI, section 59 may exercise only
those powers that the Legislature has "expressly delegated to it" or that are clearly and

lLetter from Honorable Wayne Smith, Chair, Committee on County Affairs, Texas House ofRepresentatives,
and Honorable Tommy Williams, Texas State Senate, to Honorable Greg Abbott, Attorney General ofTexas, at 1 (Apr.
21, 2008) (on file with the Opinion Committee, also available at www.texasattorneygeneral.gov) [hereinafter Request
Letter].
The Honorable Wayne Smith - Page 2 (GA-0672)

unquestionably implied from the express powers). In particular, the District's enabling act provides
express authority to "regulate wharves, piers, docks, fleeting areas, land, roadways, and other
structures and facilities incident to or accommodating of commerce or navigation."2 The phrase
"incident to" means "closely related to" or "naturally appearing with." Sharp v. Park 'N Fly o/Tex.,
Inc., 969 S.W.2d 572,575 (Tex. App.-Austin 1998, pet. denied) (quoting BRYAN A. GARNER, A
DICTIONARY OF MODERN LEGAL USAGE 430 (2d ed. 1995)). We find no judicial definition of
"accommodating," but "accommodating" in common usage means "fitting in with" the demands of
something. THE NEW OXFORD AMERICAN DICTIONARY 10 (2001); see TEX. GOV'T CODE ANN.
§ 311.011 (a) (Vernon 2005) ("Words and phrases shall be ... construed according to the rules of
grammar and common usage."). Consequently, consistently with its enabling act, the District may
regulate all structures and facilities that are closely related to or fit in with commerce or navigation.
See Act of May 17, 2007, supra note 2, § 4, at 4659.

And Water Code section 63.153(2)-(3) provides the District with "all powers relating to
regulation of ... facilities connected with waterways and ports inside the district to the fullest extent
consistent with the Texas Constitution" and power to "regulate ... improvements [and] facilities ...
incident to or necessary in the proper operation and development of ports and waterways in the
district." TEX. WATER CODE ANN. §§ 63.153(2)-(3), 62.101(1), (3) (Vernon 2004).3 Thus, the
District has additional express authority for regulating facilities that are connected with waterways
or ports or that are "incident to or necessary in the proper operation and development of ports and
waterways." Id. § 63.153(2)-(3).

Assuming, therefore, that the container-on-barge facility is "incident to or accommodating
ofcommerce or navigation," is "connected with waterways and ports," or is "incident to or necessary
in the proper operation and development ofports and waterways," the District has express authority
to regulate it. Id.; Act ofMay 17,2007, supra note 2, § 4, at 4659. Whether the container-on-barge
facility about which you ask is such a structure or facility is a question requiring the resolution of
fact issues that is not amenable to the opinion process. See Tex. Att'y Gen. Ope No. GA-0446 (2006)
at 18 ("Questions of fact are not appropriate to the opinion process.").

Furthermore, as a matter of law, the District's broad authority to regulate such structures or
facilities necessarily implies authority to establish a permitting scheme with respect to those

2See Act of May 19, 1997, 75th Leg., R.S., ch. 589, § 6, 1997 Tex. Gen. Laws 2054,2058 (original enabling
act), amended by Act of May 17,2007, 80th Leg., R.S., ch. 1365, § 4,2007 Tex. Gen. Laws 4657, 4658-59 (adding
section 6(a-l)(I)-(3) to act) [hereinafter Act of May 17,2007].

3you cite Water Code section 60.071 as providing the District with "general rule-making authority." Request
Letter, supra note 1, at 3. Section 60.071 authorizes the commission of a district that "owns, operates, and maintains
wharves, docks, piers, sheds, warehouses, and other similar terminal facilities which are not located inside the boundaries
ofany incorporated city, town, or village" to adopt ordinances, rules, or police regulations that are "necessary to protect
the property and to promote the health, safety, and general welfare of persons using the property." TEX. WATER CODE
ANN. § 60.071 (Vernon 2004). We do not know whether the District owns, operates, and maintains any ofthe facilities
listed in section 60.071. See generally Request Letter, supra note 1. Consequently, we do not base our decision upon
this provision.
The Honorable Wayne Smith - Page 3 (GA-0672)

facilities. See Walling v. Kimbrough, 365 S.W.2d 941, 945 (Tex. Civ. App.-Eastland), aff'd, 371
S.W.2d 691 (Tex. 1963) (stating that where a statute delegates authority to a political subdivision
in general terms, the political subdivision has discretion to determine the manner in which it will
exercise its delegated power).4 Any such permitting scheme must, of course, comport with the
District's regulatory power and other law. See TEx. WATER CODE ANN. § 63.153(2)-(3) (Vernon
2004) (authorizing the District to regulate "facilities incident to or accommodating of commerce or
navigation" within the District, facilities connected with waterways and ports inside the District, and
improvements and facilities "incident to or necessary in the proper operation and development of
ports and waterways" in the District); Act ofMay 17,2007, supra note 2, § 4, at 4658-59; see also,
e.g., TEX. CONST.art. I, §§ 3a, 19 (requiring equality under the law and due process of law).

4Cf TEX. WATER CODE ANN. § 63.178(f) (Vernon 2004) (suggesting that a district has authority to grant
"revocable licenses or permits" for certain purposes although the statute provides no express authority to do so); Tex.
Att'y Gen. LO-98-064, at 1-2, 6-7 (concluding that the Franklin County Water District's authority to regulate
recreational and business privileges on a lake encomp~sses authority to require certain permits).
The Honorable Wayne Smith - Page 4 (GA-0672)

SUMMARY

The Cedar Bayou Navigation District may regulate structures
on and near Cedar Bayou to the extent that they may affect water
transportation activities, are incident to or accommodating of
commerce or navigation, or are incident to or necessary in the proper
operation and development of ports and waterways. The District's
authority encompasses authority to establish a permitting system.

KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General· for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee