Honorable R. M. Dixon, Chairman Opinion No. WW-188
Board of Water Engineers
Austin, Texas Re: Exemptions from payment of
statutory fees by applicants
before the Board of Water
Engineers; and Board authority
to use part of $250.00 money
deposit for travel and ink-e,&-
Dear Sir: gation expenses.
We quote from your request for an opinion as follows:
“Attorney General’s Opinion No. V-803, dated April 4,
‘1949, discussed at great length the fees that need not be
paid to the Board of Water Engineers by public agencies
- . such as the Brazes River Authority, Lower Colorado River
: I’Authority, Upper Colorado River Authority and others. This
“. Opinion No. V-803 referred to past opinions of the Depart-
mentand overruled two of them, holding in effect, as we
interpret it,, that Districts established pursuant to Section
59. Article XVI of the Constitution are created to accomplish
a publtc purpose and should be exempt from paying fees to
the State. L”
‘As you know, many river authorities covering entire
watersheds, and special districts covering more limited
areas, have been and will be created by the Legislature.
In addition, water control and improvement districts and
other types of water districts are being and will be created
by this Board, by County Commissioners’ Couits, and, in
rare instances,.by the governing bodies of municipal corpora-
tions (Article 7880-135, V.C.S.). Such districts derive,thetr
constitutional authority from either Section 52 of Article III
or Section 59 of Article XVI, although the latter is now the
constitutional authority most frequently employed. Such
districts and river authorities are tendering applications
for water permits and presentations which Articles 7532 and
Honorable R. M. Dixon, Page 2 (WW-188)
7497, respectively, require shall be accompanied by certain
specified fees. Quite naturally, the representatives of these
agencies raise the question of their liability for payment of
statutory fees.
“Based upon the foregoing, your opinion is respectfully
requested as to the following:
“1. Are all river authorities and the various types of
water districts created by the Legislature exempt
from the payment of all statutory fees required to
., be collected by this Board for the benefit of the State7
If not, please list those which are not exempt.
“2; Are water districts created by lawful means other
than by the Legislature exempt from the payment
of all statutory fees required to be collected by
this Board for the benefit of the State?
‘3. Are municipal corporations, when acting in the pub-
lit interest to develop a water supply, exempt from
the payment of all statutory fees required to be col-
alected by this Board for the benefit of the State?
U4. Are other political subdivisions of the State such as
county governments and soil conservation districts,
when applying for water appropriation permits or
tendering presentations having as their object the
conservation and development of the water resources
of the State for public purposes, exempt from the pay-
ment of all statutory fees required to be collected by
this Board for the benefit of the State 1
.“In view of the fact that briefing the above-raised issues
will require a complete study of the question of fees collected
by this Board, we also request a re-analysis of Attorney
General’s Opinion No. S-14, dated March 2, 1953, in which it
was determined that the $250.00 deposit paid as required by
Article 7880-21 could not be used except for certain designated
:: purposes. Board policy now requires an investigation of the
areaseeking creation of a water control and improvement
Honorable R. M. Dixon, Page 3 (WW-188)
district. Is it still the opinion of your office that none of the
$250.00 money deposit can be used for travel and investigation
expenses necessarily incurred in proceedings to create such a
district?”
The question of payment of fees to the Board of Water Engineers
by governmental agencies has been reviewed in many prior opinions by this
office. A brief summary of each opinion is as follows:
1. Letter opinion dated June 30, 1925, addressed to the Game,
Fish and Oyster Commission, decided that the Commission need not pay the
statutory fees in order to acquire a permit to appropriate water for the
purpose of maintaining a game preserve and fish hatchery. The basis of the
opinion is that since game, fish, water and permit fees are all the property
of the State, and since the fees statutes do not expressly require the Commis-
sion to pay the fees, none need be paid.
2. Letter opinion dated January 3, 1938, addressed to the Board
of Water Engineers decided that the Federal Farm Security Administration
had to pay the .mandatory fees since the fees were not taxes so as to forgive
payment thereof by the Federal Government.
3. Letter opinion dated March 8, 1.938, addressed to the Braeos
River Conservation and Reclamation District, holds said district exempt
from the fees in question. This hold’ing is based on the fact that “the entire
enterprise is an undertaking by the State to conserve its public waters and
to utilize same for the benefit of the State in its entirety . . . the fees are not
required.”
4. Letter opinion dated May 4, 1938, addressed to ,Upper Red
River Flood Control and Irrigation District holds such district not liable for
the fees. This opinion pointed out a,gain that the district was a State agency
exercising powers~ and privileges in furtherance of governmental pmposes
and in addition stated that one department of government is not required .to
pay another department a license or privilege tax since this would be merely
paying the revenue of the State into the revenue of the State.
5. Letter opinion dated May 13, 1938, addressed to the Board
of Water Engineers, overrules the opinion of May 4, 1938, and ,holds the
Upper Red River Flood Control and Irrigation District liable for the fees.
Earlier opinions were reviewed and the Game, Fish and Oyster Commission
and Brazes District opinions approved. The Brazes opinion was approved
Honorable R. M. Dixon, Page 4 (WW-188)
on the basis that the net revenue of the Brazes District ultimately find
their way into the General Revenue as do the fees collected by the Board
of Water Engineers. Because the Upper Red River District’s Act did not
contain this net revenue provision, it was held liable for the fees.
6. Opinion No. O-78 dated January 13, 1939, addressed to the
State Parks Board, holds such Board not liable for the fees. This opinion
reviews all prior opinions and adopts as its basis the above indicated fee
theory whereby such Board need not pay the statutory fees, since its revenues
go into and come out of a State fund.
7. Opinion No. o-4304, approved February 9, 1942, addressed
to the Lower Colorado River Authority, holds that that Authority is not
liable for payment of the statutory fees. The opinion was based on the in-
ability of the Authority to spend its funds for any but a statutory purpose.
It decided that the Authority acquires no right through such a permit, since
its right to appropriate was conferred by its act, and that payment of the fees
in order to secure a permit would be use of its funds for a non-statutory pur-
pose. The earlier opinions on this subject were not discussed, even though
neither the Upper nor Lower Colorado Acts contain a provision whereby net
revenues go into the General Fund.
8. Opinion No. O-7338, approved August 9, 1946. addressed to
the Upper Colorado River Authority, reached the same result and for the
same reason as that set forth in Opinion No. O-4304 above.
9. Opinion No. V-803, approved A,p ril 4, 1949, addressed to
the Board of Water Engineers, reviews all prior opinions and withdraws
Opinion No. O-4304 and Opinion No. O-7338, which had held that the Authori-
ties acquired no right through a permit, since their right to appropriate was
conferred by, the Acts creating them. This opinion holds that the Colorado
Districts are exempt from payment of the statutory fees even though no pro-
vision in the Colorado Acts provides for turning net revenues to the General
Fund, as provided in the Bravos Act. The basis of the opinion was that the
Colorado and Brazes Districts were created pursuant to Section 59, Article
XVI, of the Constitution, and under no circumstances would they be authorized
to produce a profit over and above constitutional and statutory costs, therefore,
no distinction should be made.
We have carefully studied the prior opinions on this subject and
are unable to agree with the conclusions reached by them as to exemption
from payment of statutory fees by certain governmental agencies.
Honorable R. M. Dixon, Page 5 (WW-188)
The fees required by Article 7532 and Article 7497 are manda-
tory, and like all mandatory fees, they must be collected by the Board from
each applicant, unless such applicant is expressly exempt. NO exemption
whatsoever is provided under Article17532 or Article 7497, and none can be
read into the statute. No mention of exemption from payment of fees is found
in the Legislative Acts creating the various river authorities and water
districts, nor is authority for such an exemption found in Section 59, Article
XVI, of the Texas Constitution.
The Legislature can provide for an exemption as to payment
of certain statutory fees by governmental agencies and often has enacted
such a~provision. An example of this is found in the Fee Enumeration
Statute, Article 3913, which provides:
-. . ., provided neither of said officers shall demand
nor collect any fee from any officer of the State for copies
of any papers, documents or records in their offices, or
for any certificate in relation to any matter in their offices,
when such copies are required in the performance of any
oft the official duties of such office. . . .”
We are of the opinion that since no such exemption was provided
as to feesof the Board of Water Engineers, the Board must charge and col-
lect-for the benefit of the State all of the fees provided for under Article 7532
and Article 7497, V.C.S., irrespective of who the applicant may be, including
river authorities and water districts created by Legislative Act or under
statutory proceedings. We therefore withdraw Opinion No. O-78, and Opinion
No. V-803, and the prior letter opinions and substitute instead this opinion.
.
With reference to your request that this office reconsider
Attorney General’s Opinion No. S-14, dated March 2, 1953, we wish to advise
you that it is still the opinion of this office that no part of the $250.00 deposit
paid as required by Article 7880-21 can be used for travel and investigation
expenses incurred in the investi,gation of an area seeking to create a water
control and improvement district. Such expenses can only be incurred under
authority of Article 7477(10), V.C.S., which provides:
“The members, Chief Engineer, and other employees
of the Board shall be entitled to receive from the State their
necessary traveling expenses while traveling on the business
of the Board, upon an itemized statement, sworn to by the
party who incurred the expense, and approved by the Board.”
.
Honorable R. M. Dixon, Page 6 (WW-188)
The Appropriation Bill passed by the last session of the Legislature,
~Vernon’s Texas Session Law Service, 1957, p. 1085, provides the sum
of $25,000;00 for each of the next two years for payment of such ex-
penses by the Board.
SUMMARY
All applicants, including governmental agencies, must
pay the statutory fees required under Article 7532 and
Article 7497, V.C.S. The Board of Water Engineers
may not use any of the $250.00 money deposit required
under Article 7880-21, V.C.S., for travel and investi-
gation expenses incurred in the investigation of an area
seeking to create a water control and improvement
district.
Very truly yours,
WILL WILSON
Attorney General of Texas
BY
Edward A. Caeares
EAC :tiw Assistant
APPROVED:
OPINION COMMITTEE:
H. Grady Chandler, Chairman
James N. Ludlum
REVIEWED FOR THE ATTORNEY GENERAL
BY: Geo. P. Blackburn