January 9, 1968

Hon. HughC. Yantie, 

### Jr. Executive Director Texns **Water** Quelity Board 1108 LAVACAStreet Austin, TeWe

.._ 

### OpinionNO.M-186 RI?: Under the 

### TexasWeter Quality Act, whether the Texas water QuAlity Board mayprescribe 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** Yourequest our opinion **AS** 

### to the following questions: 

# i. M8ythe 

### Texas Water Quslity Board, pursuant to the rule-making,powers in Section 8and 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, weobserve that Section 8of 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 abroad 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 80doing, however, the Board is not authorized to adopt rules and reguletions which



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“‘,. .

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

are contrary to other statutory directives. 1’Tex. Jur. 2d656-7, Administrative LAW,Sec. 11, andcases cited therein. Therefore, your first question is answered in the AffirmAtive. However, these rules and regulations cannot be Laconflict 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 newsection is deemed sufficient authority to remove any doubts concerning the Board’s power to define situations wherein nofees would be charged for copies. Section 10(c) reads Asfollows:

“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 anymap, paper, or document filed with the Board. Certified copies under the h8nd of the’chairmanor the Executive Director and the seal of the Board shall be admissible in evidence in any court or adminis-

. trAt&ve proceedings in the samemanner andwith like ef-

.

fects as the original would bye.” (Emphasis added.) ~A.. Thegeneral fee statute for officers of the State andheads of BtAte Departments is Article 3913, Vernon’s Civil Statutes. It provides, in part, that:

“EAch officer namedAbove Andall other officers of the state and heads of state departments shall CAUSe to be collected the following fees for the services mentioned, except ASotherwise provided by law: (Emphasis added.)

(Herein follows anenumeration 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

It of “G 2 in Section 10(c) of the TeXAA Water Cuality Act brings your: agency within the “except ASotherwise provided by law” exception to Article 3913. Wedonot believe that there is anymerit in this contention.

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### 886.-Hon. HughC. Yantis, Jr., page 3 

### (M-186)

Article 3913 is aspecific statute relating to fees to be charged by certain officers "and all other officers of the state andheads of state departments". In order for us to hold that you are exempt from this lawi wemust first conclude that Section 10(c) constitutes aspecific ex&nption. This weare unable to do. Thefact that anact 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. 53Tex. Jur. 2d209, Statutes, Sec. 143, and cases cited therein. Article 3913 contains anexception which allows othe,r state officers and agencies to receive free copies, but said article requires afee'to be collected for copies to all others. Justice Walker, speaking for the Supreme Court of Texas in 1962, stated:"A statute maybe repealed expressly or by implication. Where a later enactment is intended to embrace all the lawupon the subject with which it deals, it repeals all former laws relating to the samesubject. Repeals by implication are not favored, however, and laws relating to the samesubject should be considered as though incorporated in the sameact. If they can be harmonized andeffect given to each whenso considered. there is noreoeal by implication". (gmphasis added.) Gordon v. a, 163 Tex. 392, 356 S.W.2d 138 (1962). Therefore, in the absence of anexpress repeal by statute'and where there is nopositive repugnance between the provisions of the old and newstatutes, the old and newstatutes must each be harmonized and construed so as to give effect, if possible, to both statutes. Winterman V. McDonald, 129Tex. 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 anaffirmance of the legislative intention set forth in Article 3913. This intent would evidence that the statute means that in somecircumstances (i.e. other state officers), a fee will not be charged, but in all other instances, fees are required to be collected. Such aconstruction is in keeping with the time-honored rule that repeals by implication are not favored. St. Louis, B&MRY.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); andInternational Service Insurance CompanyV*Jackson, 335 S.W.2d 420 (Texx. App. 1960, error ref. n.+.e.).



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Hon. HughC. Yantis, Jr., page 4 (~-186)
Therefore, you are advised that the Texas Water Quality Board may adopt rules andregulations relating to the collection of fees, insofar as said rules and regulations are consistent with Article 3913. Settion 10(c) is not anexception 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 TheTexas Water Quality Board mayadopt rules ‘and regulations relating to the collection of fees insofar as same are consistent with Article 3913, V.C.S., TheTexas Water’ Quality Act does not authorize the Board, by,rules andregulations, to distribute free copies of maps, papers or documents contrary toArticle 3913. Veq truly yours, ./ ‘;,i

ORDC. MARTIN. Prepared by Fred E. Davis Assistant Attorney General APPROVED: OPINIONCOMMITTEE Hawthorne Phillips, Chairman Kerns Taylor, Co-Chairman W.V. Geppert R. D. Green, III James Quick Jack Sparks STAFFLEGALASSISTANT A, J. Carubbi



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