Untitled Texas Attorney General Opinion ( 1973 )

.
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 All of them were repealed by the adoption in 1971 of the Water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
p. 656