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, 'addressed to'Honorable Ge'rald 

C. Finn, Attorney~General, :asking for an opinion .on ,what fees, 

if any, the Board of.Water.Engineers.can charge the State'Parks 

Board, has been received., 

Part of your letter i,sas follaws: ',. 

"The Texas State 'Parks Board; '&order to',,comply. with 'the' 

statutes relative to the impounding,and use 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 ~to construct:a dam qnE~the,Navasota River and to im-' 

po,und.and,~appropriate.certain: publ+cwater.~ 

.,:, 

*The statutes provide,‘.as in:~ A&&le7532a,' Revised Civil 

Statutes ,:as carried'forward inVernon's.'resision of Volume 

21, that this board shall charge and collect c,ertain fees 

before filing and considering an application for a permit to 

appropriate public waters. :~~ 

"This Board is ins doubt as ,to"whether or note it. 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 question were sound, and we 

will be governed thereby., 

On June 30, 1925, in an opinion.written by 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 

” . ..the Game, Fish & Oyster Commission would 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 opinion written by Mr. H. L. rvilliford 

to Mr. John D. McCall, General Counsel for the Brazes River Conservation & Reclamation District, this department said; 

"You further comment upon 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 directly affecting the Brazes River Conservation and Reclamation District 

(Chapter ,368, Acts of,the First Calle'd~Session of the 

Forty-Fourth Legislature) any,profits made 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 ~required under Brticle 3572, 

Revised Civil Statutes of Texas, 1925, are not required of 

the Braz.os River Conservation and Reclamation District, and 

you are so advised. '1 

:, 

These lasttwo quoted opin~ions ,indicate~ an answer to ,this question, but.before relying on them; we must consider~an opinion 

written by Mr. EugenecTate .to~ Mr. A.:H. Dunlap,~Member Board 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 Irrigation Distric,t the usual filing 

fees, and said: 

" ..ithe opinion of March g, l&8: written by Nr. H. L. 

dilliford.and addressed to John 6. McCall presents a dif- 

,, ferent situation from the one ~out:lined in your inquiry. 

The conclusion reached ,by Mr. Williford in this opinion was 

predicated on the fact that Section 6, of Article'81Vf provides 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. i This ,provision, it appears.to the writer, in 

,effecf~places the.Braeos driver District in the same catagory 

with the project.of the Oame, Fish and Oyster Commission 

referred to in Mr. Stone's opinion of June 30, 1925. 

"There being no provision.in theespecial act of the legis- 

., lature which,,created. the Upper.Red River Flood Controls and 

Irrigation District which'allocates the net revenue derived 

from the operation of said district to any state fund, it 
Hon. John M. Pritchett, Page:3 O-76 

is the opinion of the writer that this district is liable 

for the statutory fees provided in Article 7532 Revised 

Civil Statutes, and that required in Article 7497." 

b$Je do not think that this opinion is in conflict with the first 

two opinions from which we quote above. 

written by Mr. Eugene Tate, 

This last opinion, 

indicates that 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. 

bVe think,that this is a reasonable distinction, and that we 

should follow it. 

The State Parks Board is created by the terms of~krticle 6067 of 

the Revised Civil Statutes of Texas, which provides for a board 

of six members who "shall serve without compensation..'(.'However, 

a provision is made with reference to revenues in Article 6070a, 

which provides in part as follows: 

"Sec. 1. The State Park Board ishe~reby authorized to 

grant concessions in State Parks and'to make concession contrac,ts for any causeway, beach drive or other improvements 

in connection with State Parks sites, wherever feasible. 

The revenue thus earned by the State Parks Board shall, when 

collected be placed 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 'State Parks 

Fund', and the State Treasurer is hereby authorized Andy 

directed to designate such Fund accordingly and carry on his 

records a separate account therefoG and not exceeding One 

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 necessarily incurred 

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 impounding of 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 

,ATTORNEY GENERAL OF TEXAS