Hon. Weldon Cabaniss          Opinion Ro. V-1227
County Attorney
Aransas County               Re: Authority of the com-
Rockport, Texas                  missloners court to
                                 fill by appointment a
                                 vacancy on the govern-
                                 ing board of Aransas
                                 County Flavigation Dis-
Dear Sir:                        trict Ho. 1.
          You have requested an opinion on the following
questions:
          “1. How Is a single vacancy on the
     Board of Ravigatlon and Canal Commissioners
     of the Aransas County Ravlgatlon District
     Ho. 1 to be filled?
          “2. Nay the Araneas County Navigation
     District Ro. 1 bring itself within statutory
     provisions for the election of the Eaviga-
     tion and Canal Commissioners (rather than
     appointment) and if they can be elected, what
     precedent formal action would be required?”
          Section 1 of House Bill 817, Acts Tlst Leg.,
R.S., 1949, ch. 213, p. 398,, provides:
         “Aransas County Ravigation District Ro.
    1 heretofore created under the provisions of
    the General Law (Chapter 9, Title 128, R.C.S.
    1925) and composed of all territory situated
    in Aransas County, Texas, be and the same is
    hereby converted to a navigation District un-
    der the provisions of Article XVI, Section 59
    of the Constitution of Texas and shall hereaf-
    ter be governed by Chaoter 5. pag 7, Acts of
    the Thirty-ninth legislature, Regtlar Session
    1925. and all amendments and addltions there-’
    to and other Statutes heretofore or hereafter
    enacted, relating to navigation districts
    created under said Chapter 5.”  (Rmphasis
    added throughout.)
Hon. Weldon Cabaniss, page 2   (V-1227)



           Section 13 of Chapter 5 Acts 39th Leg. R.S.
1925 (Art. 8263h, Sec. 13, V,C.S.j provided that 'should
an vacancy occur through the death or resignation of any
 navigation and canal-/commissioners, the same shall be
P illed by the commis~ionerst court, or the navigation
board, as the case may be." The navigation board refer-
red to in this section is defined in Section 3 of the act.
          In 1929, the Legislature enacted House Bill 204,
Acts 41st Leg., 1st C.S. 1929, ch. 103, p. 246 (Art. 8263a,
V.C.S.), which recited in its caption that the act was
"providing for the election of Ravigatlon and Canal Com-
missioners of Districts created under authority of Article
16, Section 59 by amending Section 13 Chapter 5 of the
Acts of the 39th Lsgislature." In Att'y Gen. Op. O-5192-A
(1943), It was held that navigation and canal commission-
ers in navigation districts created under Article 8263h
should be elected for their regular terms as required by
Section 5 of Article 8263a. Since by House Bill 817, su-
~FB, the Aransas County Navigation District Bo. 1 Is nr
governed by the same law, we are of the opinion that sin-
gle vacancies occurring on the board should be filled in
accordance with the provision of Sect-ion5 of Article
8263a, reading as follows:
    II
     . . . should any vacancy occur through the
    death or resignation or otherwise of any Com-
    missioner the same shall be filled by the re-
    maining members of such Ravlgation and Canal
    Commission; . . ."
          Section 5 of Article 8263a contains a proviso,
stating that "this Section shall not apply to Ravigation
Districts created pursuant to Section 52 of Article 3 of
the Constitution of Texas, or to any such District con-
verted or transformed Into Navigation Districts under
Section 59 of Article 16 of the Constitution of Texas,
by virtue of Sections 1 and 2 of this Act, but the Ravvi-
gation and Canal Commissioners of such Districts shall
be appointed by the Ravlgation Board or the Commission-
ers' Court of the county having jurisdiction as hereto-
fore provided by law." This proviso Is inapplicable to
the Aransas County Ravigation District Bo. 1, since the
district was not converted by virtue of Sectioml and 2
of Article 8263a but by an act of the Legislature. We
think the effect of House Bill 817, su ra  was to make
the district subject to the statutes-9
                                     re ating to naviga-
tion districts created under Article 8263h In the same
manner as if it had been originally created under that
statute.
Hon. Weldon Cabanias, page   3   (V-1227)



          In your second question, you ,askwhether the
Aransas County Navigation District No. 1 may bring it-
self within statutory provisions for the,election of its
Ravlgatlon and Canal Commissioners. In 1949 the Legis-
lature amended Article 8263e, V.C.S., by adding the fol-
lowing section:
            “Se c . 18-a. The Board of Navigation
     and Canal Commissionars 'of any Navigation
     District coming within the purview of this
     Act may by resolution duly adopted by such
     Board provide for&i-year terms of office
     for Mavigation and Canal Commissioners ~of
     said District; provided that the terms of
     office of such Navigation and Canal Commis-
     sioners shall be so arranged that one (1)
     will expire every two (2) ybarit.    At,the
     first general election for the election of
     Navigation and Canal Commlssloners next suc-
     ceeding the adoption of the aforesaid reso-
     lution and held In any District coming withln
     the purview of this Act and availing itself
     of the provisions of this Section by the
     adoptionof such resolution, there shall be
     elected three (3) Navigation and Canal Com-
     missioners for such District, which Commls:
     sloners shall hold office for terms of two
     (2), four (4) and six (6) years, respectlve-
     lg; the respective terms of office of said
     three (3) Commissioners elected at such first
     genera1    election shall be determined in the
     following manner and by the following method:
          "Such Commissioners, havfngbeen duly
     elected and after qualifying by taking the
     oath and bond now required by law, shall
     draw by lot and the Commissioner drawing the
     number One shall serve two (2) years, the
     Commissioner drawing the number Two shall
     serve for four (4) years, and the Commls-
     sioner drawing the number Three shall serve
     for six (6) years.  Upon expiration of the
     respective terms of said.Commlssioners the
     successor of each and all of them shall be
     elected thereafter for a term of six (6)
     years at a general election held in such
     District at the times and in the manner
     specified by this Act (Article 8263e, Ver-
     non's Annotated Civil Statutes of Texas,
     Revision of 1925).
Hon. Weldon Cabaniss, page 4    (V-1227)


           “The Ravlgation and Canal Commlssion-
     ers of such District shall hold office after
     election and qualification until their suc-
     cessor shall be elected and qualified. Noth-
     ing in this Section shall be construed as to
     z;ent    any Commissioner from succeeding him-
          . Vacancies In such Board of Ravigatlon
     and Canal Commissioners shall be filled In
     the manner specified in Section 22 of said
     Act.
          “Navigation Districts created pursuant
     to Chapter 5 of the Acts of the Thirty-ninth
     sgislature in 1925, Regular Session, (Arti-
     cle t12Qh. Vernon’s Annotated Civil Statutes),
     may take advantage of this Act in the manner
     provided herein.
          “The   provisions of this Section are de-
     clared to   be cumulative of and in addition to
     all other   Acts now in force a8 to Navigation
     Districts   affected hereby.”
          Under the authority of the above quoted provi-
sions it is our opinion that the Board of Havlgation and
Canal Cosnnissionersof the Aransaa County Navigation Dis-
trict Ro. 1 may adopt the provisions of Article 8263e,
V.C.S. by a resolution of the Board, and thereafter the
election and terms of office for the Navigation and Canal
gos&ssioners will be governed by Section 18-a of Article
     .

          If the provisions of Article 8263a are adopted,
vacancies thereafter occurlng on the Board of Navigation
and Canal Commissioners will bs filled in accordance with
the provisions of Section 22, which provide:
          “All vacancies in the office of navi-
     gation and canal commissioners for such dis-
     tricts shall be filled by appointment by the
     board itself for the unexpired term. In the
     event two vacancies occur at the same time,
     the remaining navigation and canal commis-
     sloners shall call a special election to fill
     such vacancies and if he fails to do so with-
     in fifteen (151 days after such vacancies oc-
          or if the third place be vacant also, the
     g-z&e or juUgee of the District Court or Courts
     of the Judicial Districts in which such naviga-
     tion district lies, upon the petition of any
Hon. Weldon Cabanlss, page 5     (V-1227)


     voter or creditor thereof, may order the
     holding of such election, fixing the date
     thereof and order the publication of notice
     of such election by the County Clerk of the
     county, and name the officers to hold such
     election. In any such election held by or-
     der of the district judge or judges, the re-
     turns of election shall be made and filed in
     the office of the Clerk of the District Court,
     and he shall declare the result thereof."
          This opinion is not to be construed as passing
on the constitutionality of Section 18-a of Article 8263e,
v.c .s.
                       SUMMARY
          Single vacancies occurring in the Board
     of Navigation and Canal Commissioners of the
     Aransas County Navigation District No. 1 must
     be filled by the remaining members of the
     board. Art. 8265a, Sec. 5, V.C.S*
          The Board of Navigation and Canal Com-
     missioners may, by resolution, adopt the pro-
     visions of Section 18-a of Article 8263e, V.
     C.S., in which event the election and terms
     of office of such board would be governed by
     the provisions of that section. Vacancies
     occurring after such adoption must be filled
     in accordance with the provisions of Section
     22 of Article 8263e, V.C.S.
APPROVED:                               Yours very truly,

Jesse P. Luton, Jr.                       PRICE DANIEL
Reviewing Assistant                     Attorney General

Everett Hutchinson
Executive Assistant
Charles D. Mathews
First Assistant
JR:mw
