January 9, 1968 

Hon. Hugh C. Yantie, Jr. 

Executive Director 

Texns Water Quelity Board 

1108 LAVACA Street 

Austin, TeWe 

.._ 

Opinion NO. M-186 

RI?: Under the Texas Weter Quality 

Act, whether the Texas water 

QuAlity Board may prescribe 

fees to be charged for copies 

of documents filed with the 

Board. end adoit rules and 

regulations authorizing the 

distribution of free copies 

of such documents to persons 

affected by the proceedings 

of the Board, 

Dear Hr. Yantisr 

You request our opinion AS to the following questions: 

i. M8y the Texas Water Quslity Board, pursuant to 

the rule-making,powers in Section 8 and the pro- 

. . virlona ~of~SeeC~on~~10-~c~,,~exas~Water~Qua1~ity-~~~ . 

Act, prescribe the fees to be charged for copies 

of mepe, pepcrs or documents filed with the Bokrd? 

2. If so, do these provisions give the Board authority 

to adopt rules authorizing the distribution of free 

copies of such maps, papers or documents to persons 

affected by proceedings of the Board? 

In answer to your first question, we observe that Section 8 of the 

Texas Water Qmlity Act of 1967, Acts 60th Legislature, Regular Session, 

1967, Chapter 313. page 745; (Art. 7621d-1, Vernon’s Civil Statutes), 

provides a broad rule-making provision which directsthe Board to “adopt, 

prescribe, promulgeta and enforce rules and regulations reasonably required to effectuate the provisions of this Act* . .‘I In 80 doing, however, the Board is not authorized to adopt rules and reguletions which 

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“‘, 
. . 

tllon. Hugh C. Yantis, Jr., pa.@ 2 (N-186) 

are contrary to other statutory directives. 1’Tex. Jur. 2d 656-7, 

Administrative LAW, Sec. 11, and cases cited therein. Therefore, your 

first question is answered in the AffirmAtive. However, these rules 

and regulations cannot be La conflict with the general fee statute, 

Article 3913, Vernon’s Civil Statutes, hereinafter quoted in part. 

In support of your second question, you atate that, the depart- 

,mental constructton of Section 10(c) of the Texas Water Quality Act 

is that the @oard,has been given rhe authority to prescribe fees for 

co,pies of materials in tts files, and that the change in language in 

the new section is deemed sufficient authority to remove any doubts 

concerning the Board’s power to define situations wherein no fees 

would be charged for copies. Section 10(c) reads As follows: 

“Subject to the limitations imposed in Section 21, upon 

application of Any person and “non payment of the fess, : 

if Any, prescribed therefor in the rules And reaulations 

of the Board, the Board shall furnish copies, certified . 

or otherwise, of its proceedings or other official acts 

of record, or of any map, paper, or document filed with 

the Board. Certified copies under the h8nd of the’chairman or the Executive Director and the seal of the Board 

shall be admissible in evidence in any court or adminis- 

. 

trAt&ve proceedings in the same manner and with like ef- 

. 

fects as the original would bye.” (Emphasis added.) 

~A.. 

The general fee statute for officers of the State and heads of 

BtAte Departments is Article 3913, Vernon’s Civil Statutes. It provides, in part, that: 

“EAch officer named Above And all other officers of the 

state and heads of state departments shall CAUSe to be 

collected the following fees for the services mentioned, 

except AS otherwise provided by law: (Emphasis added.) 

(Herein follows an enumeration of certain fees to be collected..) 

You also suggest in your letter that underthe old provision which 

was Section 3(k) of the Texas Water Pollution Control Act, your Agency 

deemed itself to be bound by Article 3913, but that now, the inclusion 

of “G 2 It in Section 10(c) of the TeXAA Water Cuality Act brings your: 

agency within the “except AS otherwise provided by law” exception to 

Article 3913. We do not believe that there is any merit in this contention. 

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Hon. Hugh C. Yantis, Jr., page 3 (M-186) 

Article 3913 is a specific statute relating to fees to be charged 

by certain officers "and all other officers of the state and heads of 

state departments". In order for us to hold that you are exempt from 

this lawi we must first conclude that Section 10(c) constitutes a specific ex&nption. This we are unable to do. 

The fact that an act contains one or more exceptions discloses an 

intention on the part of the Legislature that there should be no other 

exception, and that the act should apply in all cases not excepted. 

53 Tex. Jur. 2d 209, Statutes, Sec. 143, and cases cited therein. Article 3913 contains an exception which allows othe,r state officers and 

agencies to receive free copies, but said article requires a fee'to be 

collected for copies to all others. 

Justice Walker, speaking for the Supreme Court of Texas in 1962, 

stated: 

"A statute may be repealed expressly or by implication. Where 

a later enactment is intended to embrace all the law upon the 

subject with which it deals, it repeals all former laws relating 

to the same subject. Repeals by implication are not favored, 

however, and laws relating to the same subject should be considered as though incorporated in the same act. If they can be 

harmonized and effect given to each when so considered. there 

is no reoeal by implication". (gmphasis added.) Gordon v. 

a, 163 Tex. 392, 356 S.W.2d 138 (1962). 

Therefore, in the absence of an express repeal by statute'and where 

there is no positive repugnance between the provisions of the old 

and new statutes, the old and new statutes must each be harmonized 

and construed so as to give effect, if possible, to both statutes. 

Winterman V. McDonald, 129 Tex. 275, 102 S.W.2d 167 (1937). 

Certainly in this instance, both Article 3913 and Sec. 10(c) of 

Art. 7621d-1 can be construed in harmony with one another. It appears 

that inclusion of the words "if any" in Section 10(c) refers to and 

constitutes an affirmance of the legislative intention set forth in 

Article 3913. This intent would evidence that the statute means that 

in some circumstances (i.e. other state officers), a fee will not be 

charged, but in all other instances, fees are required to be collected. 

Such a construction is in keeping with the time-honored rule that repeals by implication are not favored. St. Louis, B & M RY. v. Marcafich, 

221 S.W. 582 (Tex. Comm. App. 1920); Winterman v. McDonald, supra; 

Grinnnett Y. State, 163 Tex. Crim. 148, 292 S.W.2d 633 (1956); and International Service Insurance Company V* Jackson, 335 S.W.2d 420 (Texx. 

App. 1960, error ref. n.+.e.). 

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Hon. Hugh C. Yantis, Jr., page 4 (~-186) 

Therefore, you are advised that the Texas Water Quality Board may 

adopt rules and regulations relating to the collection of fees, insofar 

as said rules and regulations are consistent with Article 3913. Set tion 

10(c) is not an exception to Article 3913 and does not authorize the 

Texas Water Quality Board, by rules and regulations, to distribute free 

copies of maps, papers or docureents contrary to Article 3913. See also 

Article III,Section 52, Constitution of Texas. 

SUMMARY 

The Texas Water Quality Board may adopt rules ‘and regulations relating to the collection of fees insofar as same 

are consistent with Article 3913, V.C.S., The Texas Water’ 

Quality Act does not authorize the Board, by,rules and regulations, to distribute free copies of maps, papers or documents contrary to Article 3913. 

Veq truly yours, 

./‘;,i 

ORD C. MARTIN. 

Prepared by Fred E. Davis 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Hawthorne Phillips, Chairman 

Kerns Taylor, Co-Chairman 

W. V. Geppert 

R. D. Green, III 

James Quick 

Jack Sparks 

STAFF LEGAL ASSISTANT 

A, J. Carubbi 

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