Could Pasadena appoint commissioners to the Port of Houston Authority after its population exceeded 100,000?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-201: Pasadena Port Appointments
Plain-English summary
JM-201 concluded that Pasadena's city council could not appoint commissioners to the Port of Houston Authority merely because Pasadena's population had grown beyond 100,000.
"The city council of the city of Pasadena is not entitled to appoint commissioners to the Port of Houston Authority of Harris County."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
The opinion read Water Code section 61.158(b) together with section 61.151. It identified Houston as the qualifying municipality when the navigation district was created and treated Houston as the city holding the appointment authority.
"When the district was created the only city therein with a population of 100,000 or more was Houston. Clearly, the only city then entitled to appoint commissioners was and remains Houston."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
JM-201 also reasoned that the statute fixed a five-member commission. Giving Pasadena another municipal appointment power would increase that number beyond the structure the legislature specified.
"Subsection (a) of section 61.158 provides for the appointment of only five commissioners. If the city of Pasadena were permitted to appoint commissioners, the number would clearly increase, an eventuality which the statute does not contemplate."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Currency note
This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
What appointment power did section 61.158(b) provide?
The quoted statute assigned two commissioner appointments to the city council of the qualifying municipality and two to the county commissioners court.
"Two of the commissioners shall be appointed by a majority of the city council of the municipality having a population of 100,000 or more, and two of the commissioners shall be appointed by a majority of the commissioners court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Why did Pasadena's later population growth not trigger appointments?
The opinion said the statutory phrase referred to the municipality identified through the related code provision and the district's creation history, which pointed to Houston.
"The municipality to which section 61.158 refers is the municipality having a population of 100,000 or more set forth in section 61.151 of the code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Did the 1921 law cover districts containing a large city later?
Yes, but JM-201 treated that wording as defining which navigation districts fell within the law, not as granting every city that later crossed 100,000 its own appointments.
"The language of Senate Bill No. 93 upon which you rely merely sets forth the brackets of the bill, determining the scope of the statute to districts with a municipality containing 100,000 at the time of, or subsequent to, the bill's passage."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
How many commissioners did the statute contemplate?
Five. Two were appointed by the qualifying city's council, two by the commissioners court, and the fifth served as chairman after election in a joint session.
"The district shall be managed, governed, and controlled by a commission composed of five commissioners."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Could the AG add Pasadena appointments because the statute did not expressly forbid them?
No. The opinion said that if the legislature intended every municipality reaching the population threshold to appoint commissioners, it would have written that rule.
"If the legislature had intended that every municipality in such district be authorized to appoint commissioners once that municipality reached a population of 100,000, it would have so provided."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Background and statutory framework
The Port of Houston Authority began as the Harris County Ship Channel Navigation District in 1909 under enabling legislation tied to article III, section 52 of the Texas Constitution.
"The present authority was first created in 1909 as the Harris County Ship Channel Navigation District by enabling legislation passed pursuant to article III, section 52 of the Texas Constitution."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
A 1921 general law applied to navigation districts developing deep-water navigation and containing a municipality of at least 100,000 people. Its commissioner-appointment provision was later codified as Water Code section 61.158.
"Article 8235, V.T.C.S., the statute contained in the 1921 enactment providing for the appointment of commissioners, was, in turn, codified as section 61.158 of the Water Code."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
For statutory interpretation, JM-201 used the words' plain sense and the enactment-time meaning.
"At all times subsequent to its enactment, an act should be given the same meaning that it had at the time of its enactment."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Citations and references
- Water Code section 61.158 supplied the five-member commission structure and the city and county appointment provisions.
"Section 61.158. Appointment of Commissioners."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
- Water Code section 61.151 tied the subchapter to a deep-water navigation district containing the population-qualified city.
"A district, created for the development of deep-water navigation which includes a city with a population of more than 100,000, according to the last preceding federal census, may operate and develop ports and waterways inside the district and extending to the Gulf of Mexico."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
- Railroad Commission of Texas v. Miller appeared for the plain-sense approach to statutory text.
"Which expresses only the will of the makers of the law, not forced nor strained, but simply such as the words of the law in their plain sense fairly sanction and will clearly sustain."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0201
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0201.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
August 31, 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Erwin W. Barton Opinion No. JM-201
P. 0. BOX 12546
Austin. TX. 76711. 2546
Chairman
5121475.2501 Human Services Coa3xittee Re: Whether the city of Pasadena
Telex 9101674.1367 Texas House of Representatives is entitled to representation on
Telecopier 512f475.0266 P. 0. Box 2910 the Port of Houston Authority
Austin, Texas 7t769
714 Jackson, Suite 7CQ
Dallas. TX. 75202.4506 Dear Representative Barton:
214/742-8944
You ask us alwut the appointment of commissioners to the Port of
Houston Authority ,f Harris County, Texas. Section 61.158(b) of the
4024 Alberta Ave., Suite 160
El Paso, TX. 79905.2793
Water Code providc:s that
915/53534sd
[t]wo ol’ the commissioners shall be appointed by a
majorit), of the city council of the municipality
Wl Texas. Suite 700 having zl population of 100,000 or more, and two of
,uston, TX. 77002.3111
the coumd.ssioners shall be appointed by a majority
713/223.5886
of the wmmissioners court.
806 Broadway. Suite 312 You inform us that the population of the city of Pasadena in Harris
Lubbock. TX. 79401.3479 County now exceed:3 100,000 and wish to know whether a majority of the
9W747.5238
city council of Pasadena is thereby entitled to appoint any
conrmlssioners to the board. We conclude that it is not.
4309 N. Tenth. Suite B
McAflen. TX. 76501.1665 The present authority was first created in 1909 as the Harris
51218824547 County Ship Channt!:. Navigation District by enabling legislation passed
pursuant to article III. section 52 of the Texas Constitution. The
200 Main Plaza. Suite 400 legislature enact si. in 1921, Senate Bill No. 93. a general statute
San Antonio. TX. 76205.2797 that applied to nrwigation districts that
512l2254191
have bel!n or may be created for the development of
An Equal Opportunity/
deep w,a:er navigation, ~. having a municipality
Affirmatiw Action Employer contain:ing or hereafter containing one hundred
thousanti population or more as determined by the
last prl:eding census. . . . (Emphasis added).
Acts 1921. 37th Lzg.. 2nd C.S.. ch. 30, 51, at 53. Article 8235,
V.T.C.S., the statute contained in the 1921 enactment providing for
the appointment cf commissioners. was. in turn, codified as section
61.158 of the Watl?:: Code and provides as follows:
Honorable Erwin W. Barton - Page 2 (JM-201)
Section 61.158. Appointment of Commissioners
(a) If the provisions of this subchapter are .
adopted by a d:L.rtrfct. the district shall be
managed, governed, and controlled by a commission
composed of five commissioners, who shall be
subject to the c;upervlsion and control of the
board.
(b) Tvo of the commissioners shall be
appointed by a madority of the city council of the
I
municipality having a population of 100,000 or !
more, and two ;‘f the cossuissioners shall be
sinted by a majority of the commissioners
court.
(c) The chad.rman of the commission shall be
the fifth member ;md shall be elected by majority
vote of the city, council and commissioners court
meeting in joint session called by the county
judge.- (Emphasis added).
It is suggested that the ‘above underscored language from Senate
Bill No. 93 defining the s,:ope of the bill, i.e. districts having a
municipality containing or hereafter containinrO.000 population or
more, indicates legislattir~r intent that the governing body of 9
municipality located within such district which reaches a population
of 100,000 after the creat:ion of the district is entitled to appoint
commissioners. We disagrea: for two reasons.
When called upon to interpret a statute, we can offer only an
interpretation
which expresses only the will of the makers of the
law, not forced nor strained, but simply such as
the words of thti! law In their plain sense fairly
sanction and will clearly sustain.
Railroad Coxm~ission of Texas v. Miller, 434 S.W.2d 670, 672 (Tex.
1968) quoting Simmons v. I:!=, 220 S.W. 66, 70 (Tex. 1920). At all
times subseauent to its c!r.actment. an act should be given the same
meaning that it had at tha! time of its enactment. Ma&y v. Robison,
56 S.W.2d 438 (Tex. 1932); Townsend v. Terrell. 16 S.W.2d 1063 (Tex.
1929).
Section 61.158(b) of the code provides that
[t]wo of the commissioners shall be appointed by a
majority of the :ity council of the municipality
Honorable Erwin W. Barton - :?age 3 (JM-201)
having a populatl~n of 100,000 or more. . . .
(Emphasis added).
The municipality to which r,ectlon 61.158 refers IS the municipality
having a population of 100,COO or more set forth in section 61.151 of
the code. Section 61.151 of the code provides the following in
pertinent part:
(a) A district, created for the development of
deep-water navigation which includes a city with a
population of more: than 100,000, according to the
last preceding federal census, may operate and
develop ports ard waterways inside the district
and extending to the Gulf of Mexico. (Emphasis
added).
When the district was crea’:,! d the only city therein with a population
of 100,000 or more was Houston. Clearly, the only city then entitled
to appoint commissioners wz and remains Houston.
Moreover, subsection (a) of section 61.158 provides for the
appointment of only five crnmissioners. If the city of Pasadena were
permitted to appoint commir~r;ioners. the number would clearly increase,
an eventuality which the statute does not contemplate. If the
legislature had intended ttat every municipality in such district be
authorized to appoint commissioners once that municipality reached a
population of 100.000, it would have so provided. The language of
Senate Bill No. 93 upon whi:h you rely merely sets forth the brackets
of the bill, determining the scope of the statute to districts with 5
municipality containing 101,000 at the time of, or subsequent to, the
bill’s passage. According.L:r, we conclude that the city of Pasadena is
not entitled to appoint c~smissioners to the district in the manner
set forth in section 61.158:b) of the Water Code.
SUMMARY
The city coun:ll of the city of Pasadena is not
entitled to appc’int commissioners to the Port of
Houston Authority of Harris County.
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant-Attorney General
Honorable Erwin W. Barton - Page 4 (JM-201)
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim.Hoellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 887
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