JOaN L. arJai
.a-- CIENERAI. P-
July 31, 1975
The Honorable Tom Hanna Opinion No. H-657
Criminal District Attorney
Jefferson County Re: Authority of Port of Beaumont
P. 0. Box 2553 to own and operate port facilities
Beaumont, Texas 77704 within the boundaries of the Port of
Orange and ~to lease such faciIities
to private industry.
Dear Mr. Hanna:
You have requested our opinion concerning the following questions:
Does the Port of Beaumont Navigation District of
Jefferson County, Texas have authority:
(1) to construct, own, operate and regulate public
wharves, warehouses, grain elevators, docks and
all other related facilities on the tract of land that
it now owns consisting of approximately 232 acres in
Orange County across the Neches River from its
present port facilities, but outside of the territorial
boundaries of the District?
(2) to acquire by purchase or gift, additional tracts
of land in Orange County bordering the Neches River
but outside of the territorial boundaries of the district and
construct, own, operate and regulate public wharves,
warehouses, grain elevators, docks and all other related
facilities on such land?
(3) to construct aild own wharves, warehouses, grain
elevators, docks and all other related facilities on the
232 acres of land in Orange County owned by the Port,
and to lease same to any individual or corporation for
private industrial use?
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The Honorable Tom Hanna - Page 2
(4) to acquire, by purchase or gift, additional
tracts of land in Orange County bordering the Neches
River, but outside the territorial boundaries of the
district and construct thereon wharves, warehouses,
grain elevators, docks and all other related facilities,
and lease the same to any individual or corporation for
private industrial use?
The Port of Beaumont Navigation District of Jefferson County, Texas
was created by Acts 1949, 51st Leg., ch. 147, p. 270 as amended~by Acts
1957, 55th Leg., ch. 20, p. 30; Acts 1961, 57th Leg., ch. 5, p. 8. Your
request involves the acquisition, operation, and leasing of property within
the Orange County Navigation and Port District. Acts 1957, 55th Leg., ch.
80, p. 173.
Section 2 of the statute creating the Port of Beaumont Navigation District
provides in part:.
[ T]he district shall have and is hereby authorized to
exercise the following powers. . .
(a) The right, power and authority to acquire, purchase,
take over, construct, maintain, repair, operate, develop,
and regulate wharves, docks, warehouses, grain elevators,
dumping facilities, belt railways, lands and all other
facilities or aids consistent to or necessary to the operation
or development of ports or waterways within the District;. . .
(b) To . . . own, use and operate any and all facilities of
any kind necessary or convenient to the exercise of such
powers , rights, privileges and functions as are herein
granted, . . .
. . .
(i) To acquire by gift of purchase any and all properties of
any kind . . . within or outside of the boundaries of the
district necessary or convenient to the exercise of the
powers, rights, privileges and functions conferred on it by
this act. . . (Emphasis added).
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The Honorable Tom Hanna - Page 3
Section 21 grants the Port of Beaumont Navigation District:
all of the rights, power and authority granted by
General or Special Laws to navigation districts . . .
Section 2 contains a similar provision.
Section 62.107(a) of the Water Code, which applies, to article 16, section
59 navigation districts such as the Port of Beaumont Navigation District, provides:
(a) Any district created under this chapter may acquire
by gift, purchase, or condemnation and t-nay own land
adjacent or accessible to the navigable water and ports
developed by it which may be necessary or required for
any and all purposes incident to or necessary for the
development and operation of the navigable : water or
ports within the district, or may be necessary, or required
for or in aid of the development of industries on the land.
As quoted above, section 2(i) of Acts 1949, ,51st Leg., ch. 147, p. 270
expressly authorizes the acquisition by gift or purchase of property outside
the District. Section 62.107(a), supra, is similarly broad in its authorization
to “own land~adjacent. . . to the navigable waters or ports. . . . ” In our
opinion these pr~ovlsions clearly authorize the purchase of land outside the
boundaries of the district. Of course the condemnation authority granted by
section 62.107(a) is limited by section 2(i) of Acts 1949, 51st Leg., ch. 147,
p. 270, to areas within the boundari.es of the district.
Section 2(a) and (b) of Acts 1957, 55th Leg., ch. 20, p. 30, supra,
authorize thaDistrict.to construct and operate the type of facilities involved
in your request. Since these subsections are not limited to areas within the
District, in our opinion they authorize the construction and operation of such
facilities on land acquired outside the District pursuant to section 2(i) so long
as such facilities are “consistent to or necessary to the operation or develop-
ment of ports or waterways within the District. ”
However, a water district carnot “roam at large;” its main purpose is
to serve the area within its boundaries. Harris County Water Control and
Improvement District v. City of Houston, 357 S. W. 2d 789, 795 (Tex. Civ.
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The Honorable Tom Hannq - Page 4
App. -- Houston 1962, writ ref’d n. r. e. ). Similarly two municipal
corporations cannot have co-existent control over the same territory and
contemporaneously exercise essentially the same governmental powers in it.
City of Galena Park v. City of Houston, 133 S. W. 2d 162 (Tex. Civ. App. --
Galveston 1939, writ ref’d). Water districts are municipal corporations.
Attorney General Opinion V-787 (1949). Nevertheless, water districts may
operate property outside their boundaries pursuant to statutory authorization.
San Jacinto River Conservation & Reclamation District v. Sellers, 184 S. W. 2d
920 (Tex. Sup. 1945); King v. Jefferson County Water Control & Improvement
District No. 7> 281 S. W. 2d 185 (Tex. Civ. App. -- Austin 1955, writ ref’d);
Lower Nueces River Water Supply District v. Cartwright, 274 S. W. 2d 199 (Tex.
Civ. App. -- San Antonio 1954, writ ref’d n. r. e.). But as a general principle,
when a municipal corporation operates property within the boundaries of
another such corporation, the property must serve only the area of the
operating corporation. See City of New Braunfels v. City of San Antonio, 212
S. W. 2d 817 (Tex. Civ. Gp. -- Austin 1948, writ ref’d n. r. e.). Accordingly,
while we answer your first two questions in the affirmative, the facilities
operated outside of the boundaries of the Port of Beaumont Navigation District
may serve’only the area within the District, and such facilities must be “con-
sistent [with] or necessary to the operation or development of parts or waterways
within the District. I’ Whether facilities are consistent with or necessary to
that development is a question of fact.
Your third and fourth question concern the authority of the District to
lease property to an individual or ccsporation for private industrial use.
Section 62.107(b) of the Water Code provides:
,
The district may lease any part of the acquired land to
any individual or corporation and may charge for the
lease reasonable tolls, rents, fees, or other charges.
The district may use the proceeds both for the mainten-
ance and operation of the business of the district and for
the purpose of making the district self-supporting and
financially solvent and returning the construction costs
of the improvements within a reasonable period.
In addition, section 21 of the Act creating thePort of Beaumont Navigation
District contemplates the leasing of the District’s property, authorizing the
District to pledge “revenues derived from property owned by the District and
leased to others. ” Acts 1961, 57th Leg., ch. 5, p. 8. In Barbour v. McCallum,
p. 2884
The Honorable Tom Hanna - page 5
15 S. W. 2d 1032 (Tex. Sup. 1929) and Atwood v. Willacy County Navigation
District, 271 S. W. 2d 137 (Tex. Civ. App. -- San Antonio 1954, writ ref’d
n. r. e.), appeal dismissed, 350 U.S. 804 (1955), it was held that similar
leases were for a public purpose. See also Citv of Galveston v. Hill, 519 S. W.
2d 103 (Tex. Sup. 1975). Accordingly, we answer your third and fourth
questions in the affirmative. However, we believe the District must charge
reasonable rents in order to avoid a violation of article 3, $ 52 of the Texas
Constitution. Of course, the validity of any specific project will depend on
its particular facts. In addition, the property would remain that of the
District, and could therefore serve only the area within the boundaries of the
District.
SUMMARY
The Port of Beaumont Navigation District of
Jefferson County by gift or purchase may acquire
property outside its boundaries and may construct
and operate statutorily authorized facilities upon
such property. However, the facilities must serve
only the area of the District and must be consistent
with or necessary to the operation or development
of ports or waterways within the District.
Such property and facilities may be leased to an
individual or corporation for private industrial use
if a reasonable rent is charged and the operations
are limited in scope to those permitted of the
District were it to be the operator.
Very truly yours,
Attorney General of Texas
C. ROBERT HEATH, Chairman
Opinion Committee
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