Untitled Texas Attorney General Opinion

AUSTIN 11. TEXAS I 11, rcr!ld by&k& L March 2, 1953 .~__..-.~-_------ Hon. H,. A. Beckwlth Opinion No. S-14 Chairman Board of Water Engineers Re: Disposition of deposit AUStin, Texas for COBts made with the Board of Water Engineers under authority of Artl- cle 7880~21, V.C.S. Dear Sir: Your opinion request asks for Interpretation of Article 7880-21, V.C.S., a portion of which reads as follows : II 9 A petition . . to be filed with said Board must be accompanied by a money deposit of Two Hundred and Fifty ($250.00) Dollars to pay all costs which may be Incurred In such proceedings: After the payment of such costs any unexpended balance must be repaid to petl- tloners, or to their attorney of record, whose receipt therefor shall be sufficient. . q 0” The article further provides that when an appeal Is perfected from the Board’s decision, “the party ap- pellant shall pay the actual cost of the transcript of the record, which shall be assessed as part of the costs Incurred on such appeal.” Your letter, after quoting said statute, reads as follows: “In processing applications for the creation of water control and Improvement districts under said statute and under Artl- cle 788&3a, VACS, we would like your op- inion In answer to the following questions: I Hon. H. A. Beckwith - page 2 - S-14 . .I “1. In computing the ‘costs which ay be incurred In such uroceed- &ggl In each case wherein a petl- tlon is made under the above statute, can this Board figure In the time of Its employees In the handling of the petition, the time spent by the Board members and any other expenses of this office relative to the pro- cessing of said Individual petition? 2. If so, can the money thus paid out of the cost deposit by the Board to Itself be expended by the Board as lo- cal funds, or must same be placed In the general revenue fund of the State at the conclusion of the proceeding? 31 If such money constitutes local funds, may the present procedure of placing these funds In a local bank be con- tinued, and can the Board make expen- ditures therefrom? 4. For what specific purposes may the Board expend the money thus received? 5. Can we compute and collect our costs agalns t the co8 ts deposits now on hand which have not been returned? “For many years, the Board of Water Engineers has returned this deposit, except for actual exL penses of travel and other items Incident to the Investigation of the district, which have been de- ducted and paid on sworn accounts In the same manner and with the same detail used In present- ing claims agalns t appropriated funds. The new proposal has been suggee ted by one member of the Board,’ and your opinion Is desired as to the pro- cedure to be followed In connection with the handling of the deposit.” In Moore v. Sheooard, 144 Tex. 537, 192 S.W.2d 559, 561 (1946)) the following Is said concerning official fees? “That the fixing of official fees la a matter of general legislation, and Is a ‘sub- ject’ of general legislation within the mean- ing of Article III, Section 35, above, cannot Hon. H. A. Be&with - page 3 - S-14 be quea tioned 0 There are many such enactments in our statutee. These statutes halre been 8 trlctly construed against allowing a fee by impllcatlon, as regards both the fixing of the fee and the officer ent,itled thereto. McLennan County v. Boggess, 104 Tex. 311, 137 S.W. 346. . . And In State v. Moore, 57 Tex. 307 . . . Mr. .Justlce Stayton said: ‘It 5s not believed that any well considered case can be found In which a public officer has been permitted to col- lect fees unless the same are vrovided for. and the amount thereof declared by &f. f,w (Emphas Is added. ) To the same effect, see McCalla v. City of Rock- &Q=, 112 Tex. 209, 246 S .W; 654~ (1922); ,Nueces County v. ;;;;l;$;;;.;391;;;1 297, 162 S .W.2d 687 ,‘(1942) ; 9 Tex. Jur. In the second paragraph of Article 7880-21, V.C.S., provision Is made for a charge for a transcript of the record In the event of an appeal. This article deals with water control and Improvement districts 0 The general fee statute undgr which the Board of Water En- gineers operates is Article 7532, V.C.S. The fee schedule set out In that article is self-explanatory. These artl- cles are the only statutes authorizing a charge to be made In connection with the creation of a water control and improvement dls trict; and where no appeal Is taken, Artl- cle 7532 alone is applicable. It makes no provision for a charge for time spent by Board members or employees, and hence none can be made. The only office expenses authorized to be charged agalns t the petitioners t deposit are those specifically Itemized In Article 7532, plus, In the event of an appeal, the aforesaid transcript fee. It follows from the above that Items of travel and Investigation expenses referred to In the la8 t para- graph of your letter may not be charged against the de- posit. Article 7490, V.C.S., states that travel expenses shall be received “from the State,” and provision there- for Is made for your agency In the general appropriation bill for the current biennium. Your second and third questions are governed by Article 7533, V.C.S., which reads as follows: .. . , Hon. H. A. Beckwlth - page 4 - S-14 “The fees and charges collected In accordance with the provisions of this chapter shall be Immediately deposited In the State Treasury to the credit of the general revenue and full and detailed verified monthly and annual reports of all such receipts, as well as of the expendl- tures of the said Board, shall be filed with the Comptroller of Public ACCOUntS.” It Is clear from this article that fees earned under Articles 7532 and 7880-21 must “be Immediately de- posited in the State Treasury to the credit of the general revenue” and cannot be expended by the Board as local funds. Article 7880-21 provides that after payment of costs, the unexpended balance Is to be returned to petitioners or their attorney of record. Since the amount of the costs cannot be finally determined until the conclusion of the proceeding, the refund should be made Bt that time. If you have on hand any deposits made under Article 7880-21, concerning which the pro- ceedings have been finally concluded, you should deduct from such deposit the earned fees, as above stated, and deposit same In the State Treasury to the credit of the general revenue, refunding the balance of the deposit to the petitioners or their attorney of record. The conclusions herein expressed deal on1 with deposits made under the authority of Article 7880-21. SUMMARY The Board of Water Engineers may deduct from the deposit made under Article 7880-21, V.C.S., only the fees or coats specifically Itemized In Artl- cle 7532, V.C.S., and the transcript fee provided In Article 7880-21 In the event of an appeal. These fees or coats when Hon. H. A. Beckwith - page 5 -~S-14 earned cannot be expende,d by the Board as local funds, but they must be deposited Immediately in the State Treasury to the credit of the general revenue . At the conclusion of the proceedings, the balance of ‘the deposit should be refunded to the petitioners or their attorney of rec,ord. APPROVED: Yours very truly, Jesse P. Luton, Jr. JOHN BEN SHEF’PERD Land Dlvls Ion Attorney General Wlllla 0. Oresham c Reviewer lJ5Lzzd& BY - Robert S. Trottl 8 J. Arthur Sandlln First Assistant Assistant John Ben Shepperd Attorney .General JAS:bt