The Attorney General of Texas
May 5, 1978
JOHN L. HILL
Attorney General
Honorable Truett Latimer Opinion No. H- 116 2
Executive Secretary
Texas Antiquities Committee Re: Validity of proposed rules
Box 12276, Capitol Station of the Texas Antiquities
Austin, Texas 70711 Committee which would require
underwater cultural resource
survey guidelines.
Dear Mr. Latimer:
You have requested our opinion regarding the validity of proposed rules
of the Texas Antiquities Committee which would require underwater cultural
resource survey guidelines.
Title 9 of the Natural Resources Code created the Antiquities
Committee and declares that
[il t is the public policy and in the public interest of
the State of Texas to locate, protect, and preserve all
sites, objects, buildings, pre-twentieth century ship-
wrecks, and locations of historical, archeological,
educational, or scientific interest, including but not
limited to. . . sunken or abandoned ships and wrecks of
the sea or any part of their contents . . . in, on, or
under any of the land in the State of Texas, including
the tidelands, submerged land, and the bed of the sea
within the jurisdiction of the State of Texas.
Section 191.002, Natural Resources Code. The Committee is directed, inter
G, to
protect and preserve the archeological resources of
Texas.
Section 191.051fbX5). “State archeological landmarks” include
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Honorable Truett Latimer - Page 2 (H-1162)
Is] unken or abandoned pre-twentieth century ships and
wrecks of the sea, and any part or the contents of them, ...
located in, on, or under the surface of land belonging to the
State of Texas, including its tidelands, submerged land, and
the beds of its rivers and the sea within jurisdiction of the
State of Texas. . . .
Section 191.091. Section 191.093 declares that
111andmarks under Section 191.091 of this code are the sole
property of the State of Texas and may not be taken,
altered, damaged, destroyed, salvaged, or excavated without
a contract with or permit from the committee.
The Committee is empowered to “promulgate rules and require contract or permit
conditions to reasonably effect the purposes of this chapter.” Section 191.052.
Pursuant to this authority, the Committee proposes to require, in certain
designated “areas of primary concern,” that
any individual, agency, or company wishing to undertake
construction which will disturb the bottom and thereby
represents a threat to cultural resources . . . undertake a
survey as defined. . . .
The purpose of such a survey
is to locate and avoid anomalies which may represent
cultural resources eligible for inclusion in the National
Register and/or which constitute state archeological land-
marks.
On the basis of the rule-making authority granted the Committee in section
191.052 and its responsibility for protecting and preserving pre-twentieth century
shipwrecks, we believe that the Committee may require persons working in the
area of a known shipwreck to take action to avoid damaging it. We also believe the
Committee may require similar action of persons working in an area where there is
a likelihood that a pre-twentieth century shipwreck occurred. Any such regulations
must be reasonable in light of the costs they impose on individuals and the
protection they extend to historical resources. Whether or not particular
regulations are reasonable will thus depend on the facts. See Le Cuno Oil Company
v. Smith, 306 S.W.2d 190, 195 (Tex. Civ. App. - TexarkaKl957, writ ref’d n.r.e.),
cert. denied 356 U.S. 974 (1958), s 96 A.2d 163, 166 (Pa. Super.
ct. 1953).
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Honorable Truett Latimer - Page 3 (H-1162)
Since we cannot investigate and resolve fact questions in the opinion process,
see Attorney General Opinion H-920 (19751, we cannot establish the limits of your
i?iie-making powers. However, based on facts supplied in briefs, we believe the
regulations are unreasonable because they will require substantial expenditures for
surveys in areas’with little evidence of pre-twentieth century wrecks. The “areas of
primary concern” in which a survey is required embrace
those tracts which lie within the bays in waters where
warranted due to sufficient traffic in early times, the
offshore tracts which lie within the IO-foot depth line, and
the offshore tracts which lie at the mouths of harbors and
bays.
The areas encompassed by this description represent a significant portion of the
Texas coast. The Committee has not supplied any evidence as to the probability of
discovering a pre-twentieth century shipwreck at any particular site within these
areas. We do not believe that a standard based upon “sufficient traffic in early
times” offers a valid criterion for requiring prospective drillers to undertake costly
surveys over vast areas of sea bottom. In our opinion, there is not a sufficient
nexus between the Committee’s designation of “areas of primary concern” and
those areas which are believed with some reasonable degree of probability to
contain state archeological landmarks. It is only over the latter areas that the
Committee’s rule-making authority extends.
In conclusion, it is our view that the Antiquities Committee is empowered to
make rules which impose reasonable restrictions on drillers working in any area
where there is a likelihood that a pre-twentieth century shipwreck has occurred. In
those areas, we cannot say that the Committee lacks authority to require surveys
whose purpose is to locate state archeological landmarks. As presently written,
however, the Committee’s proposed rules are overbroad in the manner we have
indicated.
SUMMARY
The rule-making authority of the Texas Antiquities
Committee is limited to areas in which there is a likelihood
that a state archeological landmark is present. Within those
areas, the Committee has authority to require surveys whose
purpose is to locate state archeological landmarks.
Very truly yours,
/,f’,’ Attorney General of Texas
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Honorable Truett Latimer - Page 4 Ui-1162)
APPROVED:
Opinion Committee
jst
p. 4705
Untitled Texas Attorney General Opinion
Combined Opinion