January 9, 1968
Hon. Hugh C. Yantie, Jr. Opinion NO. M-186
Executive Director
Texns Water Quelity Board RI?: Under the Texas Weter Quality
1108 LAVACA Street Act, whether the Texas water
Austin, TeWe QuAlity Board may prescribe
fees to be charged for copies
of documents filed with the
.._ Board. end adoit rules and
regulations authorizing the
distribution of free copies
of such documents to persons
affected by the proceedings
of the Board,
Dear Hr. Yantisr
You request our opinion AS to the following questions:
i. M8y the Texas Water Quslity Board, pursuant to
the rule-making,powers in Section 8 and the pro-
. . virlona ~of~SeeC~on~~10-~c~,,~exas~Water~Qua1~ity-~~~ .
Act, prescribe the fees to be charged for copies
of mepe, pepcrs or documents filed with the Bokrd?
2. If so, do these provisions give the Board authority
to adopt rules authorizing the distribution of free
copies of such maps, papers or documents to persons
affected by proceedings of the Board?
In answer to your first question, we observe that Section 8 of the
Texas Water Qmlity Act of 1967, Acts 60th Legislature, Regular Session,
1967, Chapter 313. page 745; (Art. 7621d-1, Vernon’s Civil Statutes),
provides a broad rule-making provision which directsthe Board to “adopt,
prescribe, promulgeta and enforce rules and regulations reasonably re-
quired to effectuate the provisions of this Act* . .‘I In 80 doing, how-
ever, the Board is not authorized to adopt rules and reguletions which
-085.
“‘,
. .
tllon. Hugh C. Yantis, Jr., pa.@ 2 (N-186)
are contrary to other statutory directives. 1’Tex. Jur. 2d 656-7,
Administrative LAW, Sec. 11, and cases cited therein. Therefore, your
first question is answered in the AffirmAtive. However, these rules
and regulations cannot be La conflict with the general fee statute,
Article 3913, Vernon’s Civil Statutes, hereinafter quoted in part.
In support of your second question, you atate that, the depart-
,mental constructton of Section 10(c) of the Texas Water Quality Act
is that the @oard,has been given rhe authority to prescribe fees for
co,pies of materials in tts files, and that the change in language in
the new section is deemed sufficient authority to remove any doubts
concerning the Board’s power to define situations wherein no fees
would be charged for copies. Section 10(c) reads As follows:
“Subject to the limitations imposed in Section 21, upon
application of Any person and “non payment of the fess, :
if Any, prescribed therefor in the rules And reaulations
of the Board, the Board shall furnish copies, certified .
or otherwise, of its proceedings or other official acts
of record, or of any map, paper, or document filed with
the Board. Certified copies under the h8nd of the’chair-
man or the Executive Director and the seal of the Board
shall be admissible in evidence in any court or adminis-
. trAt&ve proceedings in the same manner and with like ef- .
fects as the original would bye.” (Emphasis added.)
~A..
The general fee statute for officers of the State and heads of
BtAte Departments is Article 3913, Vernon’s Civil Statutes. It pro-
vides, in part, that:
“EAch officer named Above And all other officers of the
state and heads of state departments shall CAUSe to be
collected the following fees for the services mentioned,
except AS otherwise provided by law: (Emphasis added.)
(Herein follows an enumeration of certain fees to be collected..)
You also suggest in your letter that underthe old provision which
was Section 3(k) of the Texas Water Pollution Control Act, your Agency
deemed itself to be bound by Article 3913, but that now, the inclusion
of “G 2 It in Section 10(c) of the TeXAA Water Cuality Act brings your:
agency within the “except AS otherwise provided by law” exception to
Article 3913. We do not believe that there is any merit in this conten-
tion.
- 886.-
Hon. Hugh C. Yantis, Jr., page 3 (M-186)
Article 3913 is a specific statute relating to fees to be charged
by certain officers "and all other officers of the state and heads of
state departments". In order for us to hold that you are exempt from
this lawi we must first conclude that Section 10(c) constitutes a spe-
cific ex&nption. This we are unable to do.
The fact that an act contains one or more exceptions discloses an
intention on the part of the Legislature that there should be no other
exception, and that the act should apply in all cases not excepted.
53 Tex. Jur. 2d 209, Statutes, Sec. 143, and cases cited therein. Arti-
cle 3913 contains an exception which allows othe,r state officers and
agencies to receive free copies, but said article requires a fee'to be
collected for copies to all others.
Justice Walker, speaking for the Supreme Court of Texas in 1962,
stated:
"A statute may be repealed expressly or by implication. Where
a later enactment is intended to embrace all the law upon the
subject with which it deals, it repeals all former laws relating
to the same subject. Repeals by implication are not favored,
however, and laws relating to the same subject should be con-
sidered as though incorporated in the same act. If they can be
harmonized and effect given to each when so considered. there
is no reoeal by implication". (gmphasis added.) Gordon v.
a, 163 Tex. 392, 356 S.W.2d 138 (1962).
Therefore, in the absence of an express repeal by statute'and where
there is no positive repugnance between the provisions of the old
and new statutes, the old and new statutes must each be harmonized
and construed so as to give effect, if possible, to both statutes.
Winterman V. McDonald, 129 Tex. 275, 102 S.W.2d 167 (1937).
Certainly in this instance, both Article 3913 and Sec. 10(c) of
Art. 7621d-1 can be construed in harmony with one another. It appears
that inclusion of the words "if any" in Section 10(c) refers to and
constitutes an affirmance of the legislative intention set forth in
Article 3913. This intent would evidence that the statute means that
in some circumstances (i.e. other state officers), a fee will not be
charged, but in all other instances, fees are required to be collected.
Such a construction is in keeping with the time-honored rule that re-
peals by implication are not favored. St. Louis, B & M RY. v. Marcafich,
221 S.W. 582 (Tex. Comm. App. 1920); Winterman v. McDonald, supra;
Grinnnett Y. State, 163 Tex. Crim. 148, 292 S.W.2d 633 (1956); and Inter-
national Service Insurance Company V* Jackson, 335 S.W.2d 420 (Texx.
App. 1960, error ref. n.+.e.).
-887-
. .
Hon. Hugh C. Yantis, Jr., page 4 (~-186)
Therefore, you are advised that the Texas Water Quality Board may
adopt rules and regulations relating to the collection of fees, insofar
as said rules and regulations are consistent with Article 3913. Set tion
10(c) is not an exception to Article 3913 and does not authorize the
Texas Water Quality Board, by rules and regulations, to distribute free
copies of maps, papers or docureents contrary to Article 3913. See also
Article III,Section 52, Constitution of Texas.
SUMMARY
The Texas Water Quality Board may adopt rules ‘and regu-
lations relating to the collection of fees insofar as same
are consistent with Article 3913, V.C.S., The Texas Water’
Quality Act does not authorize the Board, by,rules and regu-
lations, to distribute free copies of maps, papers or docu-
ments contrary to Article 3913.
Veq truly yours,
./‘;,i
ORD C. MARTIN.
Prepared by Fred E. Davis
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
R. D. Green, III
James Quick
Jack Sparks
STAFF LEGAL ASSISTANT
A, J. Carubbi
-888-