The Honorable James U. Cross                           Opinion No.    H-    178
Executive Director,
Texas Offshore Terminal   Commission                   Re:   Authority of the Texas
701 Congress  Avenue, Suite 302                              Offshore Terminal
Austin,  Texas 78701                                         Commission     to develop
                                                             a plan for onshore faci-
                                                             lities to accommodate
                                                             super-tankers

Dear Mr.   Cross:

    You have requested our opinion as to whether it is possible to develop
a plan for onshore facilities  to accommodate    super-tankers under the mandate
given your Commission      by Chapter 12 of the Texas Water Code (Acts 1972,
62nd Leg.,  4th.C. S., ch. 14, p. 17).

    An answer to your question      require,s an understandirgof           the    nature
of the Texas Offshore Terminal       Commission.

    The Legislature   plainly   stated its policy   and intention   in $12. 001 of the
Water Code:



             “It is the determination,     policy and intent of the
        Legislature    that the first priority of ~the Texas Offshore
        Terminal     Commission     is to develop a plan including the
        site location for an offshore terminal to accommodate
        supertankers     at the earliest possible time. ” (Emphasis
        added)



    After calling for the creation of the Commission,      and providing for its
membership     and operation,   the Code in $ $12. 061 and 12.062,  sets out the
general responsibilities    to be implemented:




                                     p.   812
The Honorable   James     U. Cross,     page 2   (H-178)




           “Section     12.061.   In General

                  “The commission   shall formulate general policy
           to govern the agency and its activities.   The commis-
           sion has the powers and duties specifically   prescribed
           by this chapter and all other powers necessary     or con-
           venient to carry out its responsibilities.

           “Section     12.062.   Development      of Plan

                   “(a) The commission         shall develop a plan leading
           to the development        of deep draft harbors or terminals,
           eit&r    by the State of Texas, private interests          or by a
           combination      of public and private entities.         The plan
           shall contain specific means by which the terminals                may
           be financed and shall provide for cost studies as to the
           optimum development.            The plan shall further contain,
           but not be limited to-proposals         for the use of facilities
           developed;     sites considered      for the facilities;   design of
           the facilities;    proposals    for operating the facilities     and
           for the maintenance of the facilities.           The plan shall
           also contain a separate proposal for steps to be taken
           to insure the optimum protection of the environment.
           The plan shall include consideration           of the legal juris-
           diction for construction,        maintenance and operation of
           then terminal facility;      the legal aspects of financing and
           ownership of the facility: determination            of responsibility
           and limits of liability for spills,        pollution-and other
           involvements       resulting from operation of the terminal;
           necessary     legislation    to create an offshore terminal
           authority or other entity as a vehicle for the operation of
           the terminal:     and any other important legal problems and
           considerations       which must be answered before such an
           offshore terminal should be constructed.               The plan shall
           also include socio-economic           data to determine what this
           facility will do for the State’s economy,           what will happen
           to the economy of the State if the port is not built, and




                                      pa 813
The Honorable   James   U.   Cross,   page 3 (H-178)




            what will be the dollars-and-cents   benefits that
            the facility will bring about and how these will
            compare to its cost.

                    “(b) The commission     t-nay contract with local
            governments,     regional planning commissions,        plan-
            ning agencies,    and shall contract will colleges     and
            universities   in the state in preference    to other sources
            when such colleges     or universities   have a better or
            equal capacity to render the service;       and may further
            consider and contract with any other qualified and
            competr.nt    persons to assist the commission       in dev-
            eloping and preparing the plan, but design and con-
            struction of the offshore port would reside within the
            private sector.     This phi,losophy is in keeping with the
            legislative  intent expressed    in HCR 138, 62nd Legis-
            lature, Regular Session,      1971. ”

       The Commission    is instructed to carry out research      “it considers
advisable and necessary”    (§ 12.063), to coordinate its work with other agencies
having complementing   or overlapping interests     [$12.064(a)],    and to make
“necessary  or convenient” contracts    (8 12.Ob5).

      The ultimate   responsibility   of the Commission   is spelled   out in $12. Obb:

                   “(a) When the commission    has prepared and
            examined the completed plan it shall hold such public
            hearings as may be necessary     concerning  the plan to
            determine if all aspects have been given adequate con-
            sideration.   After the hearing the commission    may
            amend the plan if in its opinion there is a necessity  for
            such action and shall formally  adopt the plan.

                   l’(b) The commission    shall present the plan to the
            first session of the Legislature     occuring after the adop-
            tion of the plan.   The commission      shall also cause to
            be prepared such suggested      legislation as may be nec-
            essary and desirable    for the implementation     of the plan. ”




                                       p.   814
The Honorable       James   U.   Cross,     page 4    (H-178)




     Our consideration    of the Act leads us to the conclusion that the Legislature
was nrimarilv    concerned with having the Commission        develop plans for an
offshore terminal.     If, as a result of its research,   the Commission    should
determine that an offshore facility would not be physically       possible, or would
be economically    unsound, or that an onshore facility would have advantages
far outweighing those of an offshore terminal,       the plan submitted,b.y the
Commission    may include recommendations        with reference   to an onshore as
well as an offshore terminal.

    In 5 12.067,.   the Savings    Clause      of this Act,     it is stated:

             “Nothing her,ein shall be construed in any way
        to limit,   impair,  change or curtail the power, autho-
        rity and activities   of existing port authorities,      harbor
        authorities   or navigation districts    in the State of Texas,
        but all power, authority and activities         now held and
        exercised    by those various authorities      or districts in
        the State of Texas are hereby specifically         reserved
        to them; and none of the statutory law pertaining to
        those existing authorities     or districts   is amended,
        changed or repealed by the provisions         hereof. ”

     Since there are existing navigation districts and port authorities         in
this State which have the power to plan, construct,          maintain and operate
port facilities   onshore (see § 5 60. 32, ,bO. 101, et seq.,    Texas Water Code,
V. T. C. S. ), it was apparently contemplated       by the Legislature    that they should
continue to exercise     these powers and duties notwithstanding the creation
of the Texas Offshore Terminal Commission.              The Commission      was, in our
opinion, created by the Legislature       primarily   to fill the void in tha law with
respect to the planning for offshore facilities      which could not be undertaken
by existing port authorities,     navigation districts,    and harbor authorities,
although it did not preclude the Commission’s         consideration    of onshore
facilities  where interference    with existing authorities     and districts wou.Ld not
result.    Section 12. 064 directs cooperation with such agencies.

                                  SUMMARY

            The Texas Offshore Terminal    Commission   is charged
        with the primary responsibility of developing plans for




                                          p.    815
The Honorable   James   U. Cross,   page 5    (H-178)




        offshore terminal facilities.     If, as a result of its research,
        the Commission   should determine that an offshore facility
        would not be physically   possible,   or would be economically
        unsound, or that an onshore facility would have advantages
        far outweighing those of an offshore terminal,      the plan sub-
        mitted by the Commission      may include recommendations
        with reference to an onshore as well as an offshore terminal.


                                                  Very   truly yours,




                                                  Attorney   General    of Texas

APPROVED:




DAVID   M.   KENDALL.    Chairman




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