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Honorable Cleveland Davis
County Attorney                                This bpinion Overrules
Brazoria County                                in part Opinion #O-5192
Angleton, Texas

Dear Sir:                                 Opinion No. 0-5192-A
                                          Re: Are the officers of the Brazo8
                                               River Harbor Navigation Die-
                                               trict of Brazoria County, Texas,
                                               to be elected by the qualified
                                               voters of such district or ap-
                                               pointed by the commiljsidners'
                                               court of Brazoria County, T$xas?

          We have your letter of recent date requeeting us to reconsider our
opinion No. O-5192.

          Your letter of April T9 1943, requesting the opinion of this depart-
ment on the above stated question reads in part as follows:

          "Will you please advise me a8 to whether or not the offi-
     cers of the Brazes River Harbor Navigation District of Brazoria
     County, Texas, are to he elected by the qualified voters of such
     district or appointed by the Commissioners' Court of Brazoria
     County, Texas.

          "For your information this district was organized a number
     of years ago and, therefore, any provision in the law for the
     appointment of the officers for the first term of office would
     not be under consideration here. It has been the practice of
     the Commissioners' Court of Brazoria County, Texab, since the
     organization of this district to appoint all of the officers,
     including the Chairman of such district."

          The Brazes River Harbor Navigation District of Brazoria County, Texas,
was one of the defendants in the case of Smith et al. v. Wileon et al., 13,Fed.
(2d) 1007., With reference to the constitutional and statutory provisions under
which said district was created we quote from the above mentioned case a.8follow:



         "Section 59, art. 16, of the state Constitution, is the
    expression of the public policy of this state for the conserva-
    tion and development of all its natural resources, including the
Honorable Cleveland Davis, Page 2 (0-5192-A)



     navigation of its many inland waters, and the utilization of
     its long and favorable coast line. It declarea:

          "'There may be created within the state of Texas, or the
     State may be divided into, much number of conservation and
     reclamation districts ae may be determined to be enaential to
     the accompli&ment of the purposes of thir amendment to the
     Constitution, which district shall be govermental agencies
     and bodies politic and corporate with such power6 of govern-
     ment and with the authority to exercise such righte, privi-
     leges and functions concerning the subject-matter of this
     amendment a8 may be conferred by law.'

          "The Leglelature la authorized and directed to make pro-
     vision for the creatlon,of the district and the levy and col-
     lection of the taxes.

         "To effectuate this constitutional mandate, the Thirty-
    Ninth Legislature enacted the law under which the navigation
    district wa8 formed. This act, chapter 5 of the Act.6of the
    Thirty-Ninth Legislature, also found in R. S. 1925, fully
    and in detail sets out the procedure under which this dis-
    trict was organized, providea for a hearing before and judg-
    ment by the commissioners' court on petition, which hearing
    should be had after notice, at which hearing those for and
    against the district had the rig&t to contest or to contend
    for its creation, and offer testimony in favor or against
    the district, to show that the proposed improvement or im-
    provements would or would not be of any public benefit, and
    would or would not be feasible or practicable, and a8 to any
    other matters pertaining to the district.

         "It provides that the county commissioners' court shall
    have exclusive jurisdiction of the hearing, and shall deter-
    mine all contests and objectiona, and all matters pertaining
    to the creation of the district, and all judgments or de'ci-
    sions rendered by the court shall be.final, and it expressly
    authorizes that court to adopt, reject, or change, a8 it
    deemed best, the proposed boundaries.

         "It provides minutely and in detall.for the holding of
    an election, for canvassirigand declaring the result of it,
    the issuance of bonds, and the levy of ad valoremtaxea to
    pay therefor, and specifically authorizes the dietrict to
    cooperate with the government of the United States in mat-
    ters of any proposed development."

          Chapter 5 of the Acts of the Thirty-ninth Legislature is brought
forth in Vernon's Annotated Civil Statutes as Article 826311.
BonorableCl.evele&~avle,Page 3 (O-5192-A)



         3.xopIn&xxEo. o-5:92th.L.s
                                  departme& held tht the nfavigaticm
                                                                   $nd
canal comisa~oners of e.aldn@gtttimdbvtrlct +muJ.dbe appolutedby the
comiesionerslcourt of Bramria Comty.

          Sectionu~of Artide 8263k, ~emanfe AnnctatedCivil Statuteaeo
provided.However,said Secthu lj ~88 e.wniiedby Hn'zseBill Ho. 2c& Acta
of the Forty-firstLegielatum, Fir& GaLLed Seeslou,1929. Howe Bill RCA
2Ok, eUpre,became effectiveEay 23, 19.29.   *
         Section5 of House BILI.Eo. 2&', aupra,(Sect&u 5, Article&&a,
VernonlaAnuotatedCivil Statutes)prixM.esas follms:

          "Aftertbe establislmeut  of aryEavig&ouDistrfct 86
     hereiupmvMedtheComleisslcalers    ' 3nz-t crEavl.gatiauBoard
     as the case maybe, &all appoi;it   tk-zeeEavi&io.u aud Cezml
     CommIssionera all,of x+om ahall be resfdeutsof the proposed
    EavlgationDiatrlctwhosba.lJ. be~ehoLdprope&ytarpsying                  I
    voters ofthe countywhose duties ahallbe a8 hereluafter
    provided,aud who shall each receivefor their senriceamuch          '
     compensationa8 may be fIxed by the Comissiouers'Court of
    t~.colmtyexercisingjurls~di~ iuoreating ea5iDistriot.
     SaidEavigatioua@ Canal CommIssiouers$&l hold office for
    a tern of two years and until the:= succe88orskave been
     electedand qualified,unless soouerremovedby 'auuaulmoua
    vote of the COuntyComlssioner6 or IkyigationBoard as the
    case may *.for mal-feamuoe or non-feasauoeia office,after
    a hearingdnly had accordiugtd law, fMv~-whichjudgmeutof
    .removalappeal. may be had to the X&rid     Court of the Cou+ty
     In which such CoamI.ssiouersreside aud sa'd Court shallpro-           :.
     ceedtotrythe case deumo.        Smi~ Eavigatiouand Cam1 Com-
    missionersshallbe electedon,the first SaturdayIn July in:
    .eachodd year beg-       Hth the first Saturdayiu July, 1929,
     and shall bold officefcr.twoyears aud until their6uccessors
    are electedaud qualified,euch election.    to be orderedby the
    Eavigationend canal Commiesiauers,    aad uoticethereof-shall
    be-given by the Secretaryof such Connaissiou   by postingor.
     publishingthe &me for at least twenty (20) days prior.to
     such election,and sha.ilother&se be held accord3zgto the
     GeneralElectionLawa of the State of Texas. .Shouldany va-
     caucy occur tbro~& the death or resignationor otherwiseof
     any Commissionerthe same &+I. be filledbythe rmaiuiug
     membersof such Navtgationaud Cam1 Comrcissiou;      providedthat
     if two or more vaxucies occur at the same time a special
     electionmay be calledby a petitLon~~si@.u?d  by f&y (50)
     residentpropertytaxpaylzgvoters after notZce duly giveu by
     publishingor pcstiugfor at least twenty (!ZQjdays prior to
     such electionwh.l.chpetitiohshall contaiuthe judgesami
     clerksfor such eleti,lou who Bhsx   jointlyCaniraSS   the returnS
     ana declarethe resultsof @uch electionaud issue certificates
     of electianto the auc~essfubcandidatewhZ.chelectionshall

                                                  :
HonorableClevelandDavis,Page 4 (O-5192-A)



      otherwlaebe &eld accordingto the GsneralElectionIaws of the
      State of Texas; provl&edfurthertkt this Sectionshal&not ap-
      ply to NavigationDistrictscreatedpursuantto Section52 of
      Article3 of the Comtitutioq of Texas, or to any such District
      convertedor transformedinto NavigationDistrlda under Section
      59 of Article16 of the Constitutionof Texas, by virtue of Sec-
      tlonsland2 ofthiaAct,butthe NavigatiansndCanal Commie~
     'aionersof such Districtsebd.lbe appolntkdby the Navigation
      Board or the Conmlssionere'Court of the &u&y havingjuriedlc-
      flon as heretoforeprovldedby law."

          Section7 of said Home Blli No. 204 (Section7, Article82638,Ver-
non's AnnotatedCivil Statutes)provides:

          "The provisionsofthls Act sballbe c+udative of al&
     otherActs heretofdree&ted .i,nto Law with reference to the
     organlzatlon a3d operationof Navlgatloti
                                            Dlstrlcte. & case
     of any conflictthe provisionsof this Act sh+llcontrol."

           SectionI6 of Article6263h;Vernap'sAnnotatedcivil Statutespro-
vides: .

          "Said com$sslonersshall also organizeby electingone.
     of t&&r number chairplan
                            and one secretary,and two of the
     comlsslonersshall const&tutea quorum,and a concurrence
     of two shallbe sufficientin all mattersperta-     to t@e
     businessof said district."

          It is noted that you state * effect in your letterthat the com@s-
sloners'court appointsthe chairmanof such district. With referenceto the
foregoingstatements,it ls'our opinionthat un&er Section16 of Artlc&e8263h,
supra,that the cbalrmanshouldbe selectedas providedin sala Se&loll16
and that the comlssloners'court has no authorlty~todesignatethe c&lman.

           In 'viewof Section5, House Bill No. 204;supra, (Article&63a
 Vernon'sAnnotatedCivil Statutes)amendingSection13 of Article826jh,Ger-
 non's AnnotatedCivil Statutes,It As our opinionthat the~navigatlon and Canal'
 comissionersof the BrazesRiver HarborNavlgatl~nDistrictof BrazoriaCpuntq,
 Texas, shouldbe elected.by the qualifiedvoters of such districtas required
 and authorizedbySection 5 of House Bill MO. 204, supra, (Section5, Article
'8263a,Vernon'sAnnotatedCivil Statutes).

          Therefore,.our~piniox~No. O-519; 1s hereby expresslyoverr@.edin- .
sofar as it conflictswith this opinion.
                                                      Yours very tmly
APPROVEDMAY 6, 1943            APPROVED         A!TTORNEX OENERALOFTHIAS
/s/ OeraLd c. ifagil           &IKION            By /s/.Arde&lWilliams
A!lToRNNY-L       OF Twi      coMMYlmm                   Ardell Wil&i~
                              BY /s/ GPB                       &3s1stant
AW:mp:lni                       CHAmW                    .
