.

                 THE         ATTORNEY                  GENE
                                   OF     TEXAS




    The Honorable   Joe Resweber                            Opinion.No.     H-   137
    County Attorney
    Harris   County Courthouse                              Re:     For what cause may
    Houston,   Texas 77002                                          the Commissioners
                                                                    Court remove   a member
    Dear   Mr.   Resweber:                                          of the Port Commission?

          Your letter ,requesting our opinion states the que.stion as follows,   “For
    what causes may the Commissioners       Court remove  a member    of the Port
    Commission?    ”

           “Port   Commission”     is the new name given to the Board of Navigation
    and Canal Commissioner~s        in 1971 (Acts 1971, 62nd Leg.,   Regular Sessina,
    ch. 42, p. 79).     It is the governing    board of the Port of Houston Autharity
    of Harris    County, until.the 1971 Act, known as the Harris      County Houston
    Ship Channel Navigation      District   of Harris  County.

           The Authority   was created    in 1927 pursuant to the authority          of Article
    3, $ 52, of the Constitution   (Acts 1927, 40th Leg.,       1st Called Session,        p. 256).
    In 1957 its powers were increased,       and it was changed to a navig.at,ion district
    oDerating  under the provisions     of $ 59 of Article   16 of the Constitution.         (Acts
    1957, 55;h Leg.,    ch: 117, p. 241).    This  latter  act specifically     provided     that
    the Board of Navigation     and Canal Commissioners         (now the Port Commission)
    should continue to be selected     and  hold  office  as provided     in Article    8235,
    Vernon’s   Texas Civil Statutes.

            Article   8235, V. T. C. S., is one of sevenal         statutes dealing with the
    creation    an,d operation   of navigation   districts    and, particularly   those operating
    port facilities.     All of them were repealed         by the adoption in 1971 of the Water
    Code (Acts 1971, 62nd Leg.,         Regular   Session,     ch. 58).     However,    the Water
    Code specifically      does not repeal or affect laws of a local or special nature
    ($ 1. 001(d), Water Code, Vernon’s         Texas Civil Statutes),        and therefore   the laws




                                            p.   653
The   Honorable      Joe Resweber,        page   2     (H-137)




creating    the Port of Houston Authority           and the Port Commission         are still
in effect,    and, as subsequently       amended,      constitutes the basis for the
Authority’s     existence.     Likewise,      Article   8235, incorporated       by reference
into the law delineating       the powers      of the Authority     and Commission,       still
provides     the relevant    standards     for the removal     of. commissioners,       not-
withstanding     its later repeal.      Quinlan v. Houston % IT. C. Ry. Co.,             34
S. W. 738 (Tex.       1896); Falkner     v. Allied    Finance    Company of Bay City, 394
SW. 2d 208 (Tex. Civ.App.,          Austin,     1965, err. ref.,     n. r. e. ).

       Article     8235,   V. T. C. S.,    provides:

                          “The district   shall thereafter      be managed,
                 governed   and controlled    by five commissioners,           who
                 shall be appointed as follows:        Two shall be selected
                 . . . by a majority    of the city council of the munici-
                 pality having a population     of one hundred thousand or
                 more situated in said district.       . . . Two commis-
                 sioners   and their successors      shall be selected       by
                 the commissioners      court in like manner,        and the
                 other,  who shall b e chairman,        shall be selected      by
                 a majority   vote of said city council and by the com-
                 missioners    court in joint session called by the county
                 judge of said county . . . . Said commissioners                shall
                 serve their full term of appointment          unless sooner
                 removed    by the authority    by which they were appointed
                 for malfeasance,     nonfeasance     in office,   inefficiency     or
                 other cause deemed sufficient.          If any vacancy occurs
                 through the death, resignation        or otherwise      of any
                 commissioner,      the same shall be filled as in the first
                 instance by appointment      for the unexpired      term.      All
                 acts of the commissioners        shall be subject to the super-
                 vision and control of the Navigation         Board. ” (emphasis
                 added)

       The provisions  of Article          8235 are      now found basically   as $ $ 61.158.
61.159, and 61.160 of the Water            Code.




                                            p.   654
The Honorable      Joe Resweber,       page     3   (H-137)




        The Navigation     Board,   to which reference     is made~in Ar,ticle     8235,
is a board composed        of the county,judge   and members       of the commissioners
court and the mayor and aldermen           of the city or cities within then district.
Article   8203, V. T. C. S. , calling for this board,      specifically   provides    that
it shall be called the Navigation      Board.    Section 61. 029 of the Water Code,
containing   substantially     the same provisions     as Article    8203, does not
designate   the board as the Navigation        Board but rather leaves      it unnamed.

         The Texas Constitution        provides    limitations      on the removal    of county
officers    (Article  5, $ 24) and on the removal           of “officers    of this State”
(Article    15, 5 7).  However,      it makes no provisions           for removal   of officers
of municipalities     or of district     officers.

        Article    8235 indicates    that commissioners’        acts are subject to super-
vision and control by the Navigation           Board,    and it znus.t be concluded     that
they are officers      of the Authority     and not of the county or state.         Banner v.
Belsterling,      138 S. W. 571 (Tex.     1911). Therefore,       the Legislature     was not
limited    by, either constitutional     provision    in providing   for the removal      of
Port commissioners          and was permitted      to adopt the system for their
removal      found in Article    8235 and 5 61.159 of the Water Code, both of which
provide     that a commissioner       may be removed        by the authority    which appointed
him.     If a commissioner      was appointed by the county commissioners               court,
he is subject to removal        by that body; if he was appointed         by the city council,
he is subject to removal        by the city council.       The chairman      is subject to
removal      only by the Navigation      Board - the appointing       authority   for the chair-
man.

       Therefore, the commissioners  court,    acting alone,  may remove                   from
the Port Commission   only those commissioners      which it appointed.

        The statutes provide      that commissioners        may be removed      only for
“malfeasance,      nonfeasance     in office,  inefficiency   or other causes deemed
sufficient.  ” The first three reasons        for removal     are quite broad and should
cover almost any conceivable          ground for removal.        However,     a commissioner
may be removed        for “other cause deemed sufficient.         ” The appointing     autho-
rity, being the authority      with the power      to remove,    also has the power to
determine     whether    or not there is cause deemed sufficient          for removal.     By
requiring   cause for removal,        the Legislature     has put some limitation      on the




                                           p.   655
The   Honorable   Joe Resweber,      page    4     (H-137)




commissioners      court or other appointing   authority.  Although the commis-
sioners   court must have such cause,     it has the power to dete.rmine what
cause is sufficient.    This is not to say that the appointing   authority may
act arbitraiily   or capriciously.

                                     SUMMARY

                        A commissioner       of the Port of Houston
              Authority    of Harris   County may be removed            by
              the authority    which appointed him, i. e., the
              commissioners       court of Harris      Cotmty, the city
              council of Houston OP the Navigation            Board.     A
              Port commissioner        may only be removed          for
              malfeasance,      nonfeasance,     inefficiency     or other
              cause which the removing         authority    deems to be
              sufficient   for removal.

                                                 Yzurs   very   truly,




                                       u         JOHN L. HILL
                                                 Attorney General        of Texas




DAVID M. KENDALL,           Chairman
Opinion Committee




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