Untitled Texas Attorney General Opinion

'THE ATITORNES GENE&U
OF -XAS
AUSTIN.TEXMS 78711
~~WWORD c. MARTIN
*Fro- alga&
September 9, 1970

Hon. Dorsey B. Hardeman Opinion No. lvL6a7
Exeoutive Director
Texas Water Rights Connaission Re: Authority of Texas Water
SamHouston Office Building Rights Commission under
Austin, Texas ~70711. Article 7542a,.V.C.S.,
to conduct.statutory
hearinga by and through~
a duly authorized hear&
Dear Senator Hard-an: ing examiner.
you have requested our opinion in answer to the following
questions
"Isthe-Texas Water Rights Commission
authori'xedor empowered under the pro-
visions of.Art. 7542a, V.C.T.S., to con-
duct statutory hearings;such as on late
filed claims and petitions and adjudi-
cation,proceedings, by.and through a duly
authorized hearing examiner for its sub-
se+ent consideration?"
Your attentionis invited to Section 9, of Art. 7542a which
provides for the notice and procedure for taking evidence in all
proceedings under the Water Rights Adjudication Act. This sed-.
tionreads, in part, as follows:
"Sec. 9 Notice of any hearing or other
proceeding :orderedby the.Comr$ssion.
pursuant .to,thisAct shall be given in
the,,mannerprescribed in the Rules and
Regulations of theCaPmissiOn Unless
otherwise specifically,provided.for in
this Act. In any proceeding in any part
of the.state, the~Commission.shall~have
the power to take evidence, including
the testimony of witnesses: to administer
oaths; to issue subpoenas and compel the
attendance of.witnessesi
****

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Hon. Dorsey:B. Iiardeman,page 2 (M-687)

"The evidence may be taken.by a duly
appointed reporter before the Commission
or its authorised,representative who also
shall have the power to.administeroaths."
(Emphasis added)
In the exercise of administrative duties required of the
Texas Water Rights.Commission pursuant to Article 7542a, includ-
ing matters of ,late.filingor the public hearings required tQ
lay out the preliminary Andyfinal determinations, persons desig-
nated by the Commission (whether legal , engineering or otherwise
qualified)~,-may'hold&e.p.ublic.hearings so.long as transcripts
of'the evid.enQe:atthe former hearings are available,to the Com-
missioriwhen~it acts on such reports , and~provided-such examiners
prepare ,a report with recommendations~before the Commission acts
to make ,a'decisionrequired of.,itunder Article 7542a. Wagnolia
Petroleum Co..v. Railroa?i'Commission,~~~~.2~~S.W.2d~230;
(Tex.Civ.App.
n39, error dism.; jud. correct);.2 Am.Jur.2d 50, Administrative~
Law, Sec.'221; 42 Am.Jur; .387;'.Public.A.dministrativeLaw, 'Sec.
73:7~;g~vcQ~~t~.e States, 298 U.S. 4~68,'481 (1935). The Corn:
the evidence and arguments
. in the record and
make'adecisioxi without actually conducting the hearing; Varian's
Estate vl Comtnissioner,393.,F.2d75,3 (9th Cir. 1968),.cert.,den..
-U.S. 962.
The 'decision-making,".mus't
be:done by Texas Water Rights
Commissidn.based on cqnsideratiQn.of the available,record'and
withor without conference or.oral.,discussionwith the hearing
examineri This is made'plainby the Magnolia opinion, supra.'.

examiner's written memorandums, the examiner
took the matter up withthe Commissioners
and disouesed.it orally.'

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Ron.~Dorsey B. Hardeman, page 3 (M-687) .

Even where the statutes relating to Texas Water Rights Com-
mission-are silent on the subject of use of~examiners to conduct
hearings and take testimony, this right of your State agency to
use examiners is an "implied powe~r-@',-because
of the nature and ex-
tent of the statutory duties of Texas Water Rights-Commission.
These are so Complex, manifold ,ana voluminous that they 00uia not
be expected to,be performed personally by the three Commissioners
h&z;;g 2 offices which make up the agency. Shreveport En-.
g ., Inc. v. U.S., 143 F.2d 222, (5th Cv.
8 323 U.S. 749, r-n. 329 U.S. 815); Krug v. Lincoln
N%onal Life, 245 F.2d 848 (5th Cir. 1957); Anderson v. Grand
River Dam Authority, 446 P.id 814 (Okla.Sup. l- ex-nt.
article outlining insdetail the procedure used throughout past
years by the Texas Railroad Commission is found in 18 Southwestern
Law Journal 406, "Practice and Procedure in Oil and Gas Hearings
in~Texas)" by Greenhill,and McGinnis. Texas Water Rights Com-
missioners in their consideration of the case are not confined
to evidence actually brought out at the examiner's hearing, and
can rely upon information disclosed by the Commission's office
records. Phillips vi Brazosport Savings & Loan Association,
366 S.W.2d 929 (Tex.Sup., 1963, appeal dism. 375 U.S. 438)..
'The rule allowing use of examiners is also found in 2
American Jurisprudence, Administrative Law, Section 407, w3es
217-18, ae follows:
"Neither does due process of law or the
concept of.a 'fairor a full hearing re-
quire that the actual taking of testi-
mony be before the same officers as are
~to determine the matter involved. Whether
or not expressly authorized by.statute,
it is permissible and does not render a
hearing inadequate or unlawful; for an
administrative agency to employ the panel
method of hearing inwhich one or more Of
the members~ oftthe agency takes the testi-
mony in the matter before the agency, or
to employ motherpersons such as an exa-
ner , investigator, or referee, to obtain
the evidence and conduct the hearings,
and make a report to the agency upon.which
the agency makes its decision. Such pro-
cedure is a practical necessity".

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Hon. Dorsey B. Hardeman, page 4 (M-687)

see also Younger Bros., Inc., v. U.S., 238 Fed.SuPp. 659
(5th Cir., 1965)ge
t. 60616, Sec. 7; Dan M..
Creed, Inc., v. Tynan, 151 corm.. 677, 202 A.2d 239 (1964).

SUMMARY
-__----

Texas Water Rights Commission may employ
the examiner method of procedure under
Section 9 of the Water Rights Adjudication
Act. This power to use examiners is fur-
ther implied in all 'proceedingsby the
Commission where the statutes are silent
as to use of an examiner.

Prepared by Roger B. Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, CO-Chairman
Linward Shivers
Roland Allen
Bennie Bock
Tom'Bullington
MEADE F. GRIFFIN
Staff Legal Assistant
NOLAWBITE
First Assistant

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