June 21, 1967 .., .4 ;

Hon. J. D. Kirkland, Chairman ’ Opinion No. M-98 Texas Water Well Drillers Board Austin, Texas Re: Whether a non-resident applicant maybe issued a license under the Texas Water Well Drillers Act. DearMr. Kirkland: Youhave asked that this office advise you onwhether your Board is **empowered**

to issue licenses to drill water wella in ‘Texas to nonresidents by the Water Well Drillers Act (Article 7621e, Vernon’s Civil Statutes). Section 3(a) of Article 7621e, Vernon’s Civil Statutes, rtatea in mandatory terms that “It shall be unlawful **for** any person to act as or to offer **to** perform services as awater well driller without first obtaining **a** certificate of registration in the wanner prescribed herein and purruant to the rules of Water Well Drillers Board.”
In Section 2, ibid, wefind the only exceptions to the mandate of Section 3(a): Section 2(d) excludes **test holea**  for mines and oil and gas wells, and Section 2(c) exempts from the licaneing requirements anyone working **on**a drilling rig under the direct supervision of a duly licensed driller or a landowner drilling awater well on his ownland for his ownuse. ~Section 3(c) sets forth the,provirion that each applicant desiring to become a registered driller,muet submit an application **and an** examination fee. Section 3(g) contains a “Grandfather Clause” which expired **August** 31, 1966. Section 3(h) provides that: “Elfh’ applicant shall have been a resident of the State of Texas for **not** less than 90days ‘prior to makingapplication for registration as a water well driller.” (Empharie ad&d). Here is the clearly stated intent of the Legislature that the Board is without authority to accept an application from an applicant whohas resided in the State for lers **than** ninety (90) **consecutive** days imediately prior **to** SUBmitting his applicatfon.Hon. J. D. Kirkland, page 2, Opinion No. (M-98) Theresidency requirement of Article 7621e is constitutionally valid and such enactmant was a proper exercise of Legislative power. It has long been the rule in Anglo-American jurisdictions that a 11; tense or privilege of public character maybe granted or withheld for good cause by a proper exercise of the police,power’of the stats. Merriwether v. Dixon, 28 Tex. 15 (1856); Saint Louis Southwestern Ry. Co. of Texas v. Shiflet, 98 Tex. 326, 83 S.W. 677 (1904). TheTexas SupremeCourt specifically upheld residency as a valid qualification of licensing in DeGrazier v. Stephens, 101 Tex. 194, 105 S.W. 992, 16L.R.A. (N.S.) 1033 (1907). Thesetting of minimumqualifications and standards of proficiency for water well drillers InTexas for the purpose of preventlhg groundwater pollution falls well within the purview of the valid exercise of ‘the State’s police power in the interest of the public health, safety, andwelfare. Under the Reciprocity Section (Section 4) of the **Act,** the Board is empoweredto dispense with **the** examination requirement for applicants whohold certificates of qualification or registration from certain states, territories, or possessions of the United States or foreign countries equal to the Texas standards. Section 4 expressly provides that applicants entitled to registration under the Act without taking the examination ‘I.

. I must showcompliance with the reaidency requirements of Section 3, subsection (h) hereof.” Therefore, weanswer your query in the negative, andmore fully as follows: (1) Pursuant to Article 7621e, an application for a Texas Water Well Driller”8 Certificate maynot be accepted unless the applicant has resided in the State for at least ninety (90) consecutive days immediately prior to tender of his application. (2) The~TexasWater Well Drillers, Board has the statutory duty to require compliance with the said requirement, andmayrequire an affidavit, or other proof of residency, from each applicant. (3) Non-residents, however, are entitled to the sameexemptions from licensing as are State residents. a. Theymaydrill water wells on land they ownwithin the State for their ownuse without a license. b.,They may**work**on a drilling rig under the direct rupervisfon of a duly licensed Texas Water Well Driller. c.,And. they need not obtain awater well drilling license to drill mining test holes or oil andgas wells.

**-44%**., . i

Hon. J. D. Kirkland, page 3, Opinion No. (M-98)
SUMMARY Article 7621e, Vernonss Civil Statutes, sets amandatory prerequisite that any applicant whodesires to drill or offers to drill water wells in Texas must have resided within the State for ninety (9Q) consecutive days immediately prior to makingapplication for such a drilling license. VFgtruly yours,

-bAW#ORDc. MARTIN Attorney General of Texas ,; Prepared by Roger Tyler and John Duren

Assistant **Attorneys** General **/ /**  1

APPROVED: OPINIONCOMMITTEE HawthornePhillips, Chairman W. V, Geppert, Co-Chairman HoughtonBrownlee Malcolm Quick Arthur Sandlin Vince Taylor STAFFLEGAL

ASSISTANT A. J. Carubbi, Jr.

**-446**