Untitled Texas Attorney General Opinion ( 1973 )

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
p. 816