   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?




                                                    p. 2881
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).




                                     p. 2882
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.




                                          p. 2883
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
                                    p. 2885
