January 7, 1969
Honorable Bill Clayton
Chairman,
House Interim Water Study Committee
House Chamber, Capitol Station
Austin, Texas 78711
Opinion M-330
Re: Respons1billty on the
Houston Ship Channel
for fire, safety, police,
Dear Mr. Clayton: pollution, etc.
On behalf of the House Interim Water Study Committee,
you have re uested our opinion as to what agencies of
government 4 city, county or navigation district) have responsl-
bility on the Houston ship channel for fire, safety, police,
pollution, etc. You ask whether these responsibilities
fall upon the Port Commission, the City of Houston, on Harris
County, the Coast Guard, or others connected with the opera-
tioflthere.
A blanket reply cannot be given, because some of the
channel is within the corporate limits of Houston and some of
the channel is outside those limits.
First dlscussed 1s the situation for the part of the
channel within the corporate limits of Houston.
The City of Houston Is a home-rule city and aa such
has all of the powers under the Texas Copstitution which are
not prohibited to it by the United States or Texas Constitu-
tions or laws. Bland vkeC Taylor, 37 S.W.2d
Tex. Civ. App.), d Tex. 39, 67 S.W. .2sg:033
I 1934 I. Police and fire regulations or ordinances are speci-
fically provided for by Art. 1175, Vefnonls Civil Statutes,
Subdivisions 27-29, inclusive, and Subdivision 19 (as amended
by Acts of the 60th Leg., 1967, Chap. 100, page 18i9). By the
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Hon. Bill Clayton, page 2 (M-330)
express provisions of the general law pertaining to navi-
gation districts, (applicable to the one in Harris County),
city powers are not diminished by creation of such a navi-
gation district. Art. 8247, Vernon’s Civil Statutes. Also
see Articles 1183 through 1187, Vernon’s Civil Statutes, which
preempt these powers to the City of Houston.
It is our opinion that the general fire and police
powers on and near the Houston Ship Channel are vested in the
City of Houston and that it can enact such ordinances as would
otherwise be in consonance with the Constitution and laws
of Texas and of the United States. Fiy Attorney General
Opinion M-190, (1968), the navigation district, county, or
city could jointly or severally abate water pollution; and the
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 and regulation thereof throughout the entire
area of the channel are confided by law to the Harris County-
Houston Ship Channel Navigation District, This governmental
agency was first 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. The district’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. The article nurnorts
to give navigation districts broad powers over matters of fire,
safety, and police powers. We interpret the language of
Section 1 of the article to grant those powers, however, only
when the district owns, operates and maintains wharves, docks,
piers, sheds, warehouses and other 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 we are of the opinion
that it properly relates to the situs of the terminal
facilities. Under our interpretation, then, if the district
does not own or operate terminal facilities at any location
it does not have any of the powers conferred by Article 8247b-1.
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Hon. Bill Clayton, Page 3 (M-330)
The city may not exercise any of those powers with respect
to any terminal facilities that It might own or operate within
corporate limits, The district possesses the power con-
ferred by Article 8247b-1 only to the extent of its owner-
ship of terminal facilities outside the city corporate
limits.
The County of Harris’ powers extend through the
Commissioners1 Court only to those powers and duties
specifically enumerated by the Constitution and Statutes.
15 Tex.Jur.2d,Counties, Sec. 35, pages 261-63. By statute
the county can purchase fire trucks and other 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 and has no
proprietary functions. 15 Tex.Jur.2d, Counties, Sec. 80,
page 307; Miller v. El Paso County, 136 Tex. 370, 150
S.W.,2d lOOq1941). 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. 2 v. Mann, 135 Tex. 280, 142 S W 2d 945
1940); Stratton v. Commissioners1 Court, lj7’S.W. 1170,
Tex.Civ.App. 1911, error ref.). It has no generalpolice
powers, but may enforce state laws in generai, and as a
local overnment it can abate air or water pollution.
Art. 48 77-5,V.C.S.* Art. 7621d-1, V.C.S; Attorney General
Opinion M-190 (1966).
The Coast Guard regulations may provide for any
regulations as to fire, safety, etc. cognizable under
federal statutes as an adjunct of the exercise of the
commerce powers of Congress under Art. I, Sec. 8 of the U.S.
Constitution. One regu’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 own or operate any terminal
facilities within the corporate limits of any
city, the city has jurisdiction within its limits
over matters of fire, safety, and police power
even within the limits of the district. The
county may enforce within the district all state
laws. Either the city or the county may bring
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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 may bring suit under the
latter. The district, pursuant to
Art. 8247b-1, V.C.S., has juris-
diction over fire, safety, and
police powers to the extent that
it owns or 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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