                       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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APPROVED:




Opinion Committee

jst




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