'THE ATITORNES GENE&U 

OF -XAS 

~~WWORD c. MARTIN 

AUSTIN.TEXMS 78711 

*Fro- alga& September 9, 1970 

Hon. Dorsey B. Hardeman Opinion No. lvL6a7 

Exeoutive Director 

Texas Water Rights Connaission Re: Authority of Texas Water 

SamHouston Office Building Rights Commission under 

Austin, Texas ~70711. Article 7542a,.V.C.S., 

to conduct.statutory 

hearinga by and through~ 

a duly authorized hear& 

Dear Senator Hard-an: ing examiner. 

you have requested our opinion in answer to the following 

questions 

Your 

"Isthe-Texas Water Rights Commission 

authori'xed or empowered under the provisions of.Art. 7542a, V.C.T.S., to conduct statutory hearings;such as on late 

filed claims and petitions and adjudication, proceedings, by.and through a duly 

authorized hearing examiner for its subse+ent consideration?" 

attentionis invited to Section 9, of Art. 7542a which 

provides for the notice and procedure for taking evidence in all 

proceedings under the Water Rights Adjudication Act. This sed-. 

tionreads, in part, as follows: 

"Sec. 9 Notice of any hearing or other 

proceeding :ordered by the.Comr$ssion. 

pursuant .to,this Act shall be given in 

the,,manner prescribed in the Rules and 

Regulations of theCaPmissiOn Unless 

otherwise specifically, provided.for in 

this Act. In any proceeding in any part 

of the.state, the~Commission.shall~have 

the power to take evidence, including 

the testimony of witnesses: to administer 

oaths; to issue subpoenas and compel the 

attendance of.witnessesi 

**** 

-3305- 
Hon. Dorsey:B. Iiardeman, page 2 (M-687) 

"The evidence may be taken.by a duly 

appointed reporter before the Commission 

or its authorised,representative who also 

shall have the power to.administeroaths." 

(Emphasis added) 

In the exercise of administrative duties required of the 

Texas Water Rights. Commission pursuant to Article 7542a, including matters of ,late.filing or the public hearings required tQ 

lay out the preliminary Andy final determinations, persons designated by the Commission (whether legal , engineering or otherwise 

qualified)~,-may'hold &e.p.ublic.hearings so.long as transcripts 

of'the evid.enQe:atthe former hearings are available, to the Commissiori when~it acts on such reports , and~provided-such examiners 

prepare ,a report with recommendations~ before the Commission acts 

to make ,a'decision required of.,it under Article 7542a. 

Petroleum Co..v. 

Wagnolia 

Railroa?i'Commission,~~~~.2~~S.W.2d~230; (Tex.Civ.App. 

n39, error dism.; jud. correct);.2 Am.Jur.2d 50, Administrative~ 

Law, Sec.'221; 42 Am.Jur; .387;'.Public.A.dministrative Law, 'Sec. 

73:7~;g~vcQ~~t~.e States, 298 U.S. 4~68,'481 (1935). The Corn: 

the evidence and arguments in the record and . make'adecisioxi without actually conducting the hearing; Varian's 

Estate vl Comtnissioner,393.,F.2d 75,3 (9th Cir. 1968),.cert., den.. 

-U.S. 962. 

The 'decision-making,".mus't be:done by Texas Water Rights 

Commissidn.based on cqnsideratiQn.of the available,record'and 

withor without conference or.oral.,discussion with the hearing 

examiner i This is made'plainby the Magnolia opinion, supra.'. 

examiner's written memorandums, the examiner 

took the matter up withthe Commissioners 

and disouesed.it orally.' 

-3306- 
Ron.~ Dorsey B. Hardeman, page 3 (M-687) . 

Even where the statutes relating to Texas Water Rights Commission-are silent on the subject of use of~examiners to conduct 

hearings and take testimony, this right of your State agency to 

use examiners is an "implied powe~r-@',-because of the nature and extent of the statutory duties of Texas Water Rights-Commission. 

These are so Complex, manifold ,ana voluminous that they 00uia not 

be expected to,be performed personally by the three Commissioners 

h&z;;g 2 offices which make up the agency. Shreveport En-. 

8 

g ., Inc. v. U.S., 143 F.2d 222, (5th Cv. 

323 U.S. 749, r-n. 329 U.S. 815); Krug v. Lincoln 

N%onal Life, 245 F.2d 848 (5th Cir. 1957); Anderson v. Grand 

River Dam Authority, 446 P.id 814 (Okla.Sup. l- ex-nt. 

article outlining ins detail the procedure used throughout past 

years by the Texas Railroad Commission is found in 18 Southwestern 

Law Journal 406, "Practice and Procedure in Oil and Gas Hearings 

in~Texas)" by Greenhill,and McGinnis. Texas Water Rights Commissioners in their consideration of the case are not confined 

to evidence actually brought out at the examiner's hearing, and 

can rely upon information disclosed by the Commission's office 

records. Phillips vi Brazosport Savings & Loan Association, 

366 S.W.2d 929 (Tex.Sup., 1963, appeal dism. 375 U.S. 438).. 

'The rule allowing use of examiners is also found in 

American Jurisprudence, Administrative Law, Section 407, 

217-18, ae follows: 

"Neither does due process of law or the 

concept of.a 'fair or a full hearing require that the actual taking of testimony be before the same officers as are 

~to determine the matter involved. Whether 

or not expressly authorized by.statute, 

it is permissible and does not render a 

hearing inadequate or unlawful; for an 

administrative agency to employ the panel 

method of hearing inwhich one or more Of 

the members~ oft the agency takes the testimony in the matter before the agency, or 

to employ mother persons such as an exaner , investigator, or referee, to obtain 

the evidence and conduct the hearings, 

and make a report to the agency upon.which 

the agency makes its decision. Such procedure is a practical necessity". 

2 

w3es 

-3307- 
Hon. Dorsey B. Hardeman, page 4 (M-687) 

see also Younger Bros., Inc., v. U.S., 238 Fed.SuPp. 659 

(5th Cir., 196 5)ge t. 60616, Sec. 7; Dan M.. 

Creed, Inc., v. Tynan, 151 corm.. 677, 202 A.2d 239 (1964). 

-__---- SUMMARY 

Texas Water Rights Commission may employ 

the examiner method of procedure under 

Section 9 of the Water Rights Adjudication 

Act. This power to use examiners is further implied in all 'proceedings by the 

Commission where the statutes are silent 

as to use of an examiner. 

Prepared by Roger B. Tyler 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, CO-Chairman 

Linward Shivers 

Roland Allen 

Bennie Bock 

Tom' Bullington 

MEADE F. GRIFFIN 

Staff Legal Assistant 

NOLAWBITE 

First Assistant 

-3308-