Honorable John ~W.Pritchett

Member Board of Water Engineers Austin,,Texas January'l3, 1939

: Opinion No; 78

. Re: Public waters".: Dear Mr. Pritchett:

Your letter'of 'Jan&y '9,1939, 'addressedto'HonorableGe'rald C. Finn, Attorney~General,:askingfor an opinion .on,whatfees, if any, the Board of.Water.Engineers.cancharge the State'Parks Board, has been received.,
Part of your letter i,sas follaws: ',. "The Texas State 'ParksBoard; '&order to',,comply. with 'the' statutes relative to the impounding,anduse of the public waters of this state and to establish its rights relative thereto,:.has

fi-led an applicat.ion

with this board for a permit~toconstruct:a dam qnE~the,Navasota River and to im-' po,und.and,~appropriate.certain: publ+cwater.~ .,:, *The statutesprovide,‘.as in:~ A&&le7532a,' Revised Civil Statutes,:as carried'forward inVernon's.'resisionof Volume 21, that this board shall charge and collect c,ertain fees before filingand consideringan application for a permit to appropriatepublic waters. :~~ "ThisBoard is ins doubt as ,to"whetheror noteit. should collect the usual filing fee from~ the Texas State Parks Board and requests your.. advice in the matteri" In,your letter you refer&the fact that 'this Department has previously rendered opinionson questions similar~ to this. No Texas appellate court, .asfar as we.can~ascerta.in,~ has,acted on this question; and we feel that the opinions heretofore rendered by this department on this questionwere sound, and we will be governed thereby.,
On June 30, 1925, in an opinion.writtenby Mr. C.~L. Stone to Mr. Turner E. Hubby, Game, Fish.,& Oyster Commiss.ion, this department held: . ',Hon. John W. Pritchett,Page 2 O-78

”

...theGame, Fish & Oyster Commissionwould not be required to~pay to the Board of :Jater Engineers a fee for filing his application for such water under the requirements of the statute."
On March G, 1938, in an opinionwritten by Mr. H. L. rvilliford to Mr. John D. McCall, General Counsel for the Brazes River Conservation& ReclamationDistrict, this department said;
"You further commentupon the fact that the revenues collected by the Board of rtater Engineers under Article 7533 are deposited in the State Treasury, to the credit of the general revenue fund. Likewise under the provisions of the-most recent Act of the Legislature directlyaffecting the Brazes River Conservationand ReclamationDistrict (Chapter,368,Acts of,the First Calle'd~Session of the Forty-Fourth Legislature)any,profitsmade ul'timately by the district are to be paid into'the general revenue fund in the'Treasury of the State of Texas.
"I am of the opinionthe fees~requiredunder Brticle 3572, Revised Civil Statutes of Texas, 1925, are not required of the Braz.os

River Conservationand ReclamationDistrict, and you are so advised. '1 :, These lasttwo quoted opin~ions ,indicate~

an answer to ,thisquestion, but.before relying on them; we must consider~anopinion written by Mr. EugenecTate .to~ Mr. A.:H. Dunlap,~MemberBoard of Water Engineers, on May 13, 1938, in which this department held that the Board of ufater Engineers.should charge the Upper Red River Flood Control and IrrigationDistric,t the usual filing fees, and said: "..ithe opinion of March g, l&8: written byNr. H. L. dilliford.andaddressed to John 6. McCall presents a dif-

,, ferent situation from the one ~out:lined in your inquiry. The conclusion reached ,byMr. Williford in this opinion was predicated on the fact that Section 6, of Article'81Vfprovides in substance that the net revenue derived from the operationof the Braxos.!River Conservationand Reclamation District shall be paid~into the general fund of.the.State of~Texas. iThis ,provision,it appears.to the writer, in ,effecf~placesthe.BraeosdriverDistrict in the same catagory with the project.of the Oame, Fish and Oyster Commission referred to inMr. Stone's opinion of June 30, 1925. "Therebeing no provision.in theespecial act of the legis-

.,laturewhich,,created. the Upper.Red River Flood Controls and IrrigationDistrict which'allocates the net revenue derived from the operation of said district to any state fund, itHon. John M. Pritchett, Page:3 O-76

is the opinion of thewriter that this district is liable for the statutory fees provided in Article 7532 Revised Civil Statutes, and that required inArticle 7497." b$Je do not think that this opinion is in conflictwith the first two opinions fromwhich we quote above. written by Mr. Eugene Tate, This last opinion, indicatesthat it required the governmental agency in question to pay the fees because its revenues did not go into and come out of a State fund, whereas, the governmental agencies involved in the other two opinions quoted were such that their revenues did go into and come out of a State fund. bVethink,that this is a reasonable distinction, and that we should follow it. The State Parks Board is created by the terms of~krticle6067 of the Revised Civil Statutes of Texas, which provides for a board of sixmembers who "shall servewithout compensation..'(.'However, a provision is madewith reference to revenues in Article 6070a, which provides in part as follows:
"Sec. 1. The State Park Board ishe~rebyauthorized to grant concessions in State Parks and'to make concession contrac,ts

for any causeway,beach drive or other improvements in connectionwith State Parks sites,wherever feasible. The revenue thus earned by the State Parks Board shall,when collectedbeplaced in the State Treasury....
Vet. 2. The funds and revenue dre'ived under the provisions of thisAct and deposited in the State Treasury shall be deposited in a Special Fund to be known as the 'StateParks Fund', and the State Treasurer is hereby authorizedAndy directed to designate such Fundaccordingly and carry on his records a separate account therefoG and not exceedingOne Thousand ($l,OOO;OO)Dollars per year is hereby appr,opriated by the Legislature of Texas out of said Fund for the payment of'the traveling and contingent expenses of the members of the State Parks Board which have been necessarilyincurred in the performance,of their duties." iVJe think that this clearly shows that the revenues.of the State Parks Board go into'and come out of a State fund; and therefore

-. it falls in the class of the governmental agencies referred to in the first two opinions quoted as far as charging fees are concerned. p/e adhere to the former opinions of"this Department, quoted above, and hold that the Board of Mater Engineers should not cqllect the usual,filing fees from, the State Pa'rks

Boards with reference to the building of dams and the impoundingof water.Hon. John W. Pritchett,Page 4 O-78

Yours very truly
ATTORNEY Gi3NERAL

OF TEXAS

CCR:N BY Carl C. Rotsch Assistant

APPROVED
GERALD C. MANN ,ATTORNEYGENERAL OF TEXAS