                       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


                             -1622-
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.
                                   - 1623-
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
                                -1624-
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




                                   -1625
