### 'THE ATITORNES GENE&U OF -XAS

~~WWORD c.MARTIN AUSTIN.TEXMS 78711 *Fro- alga& September9, 1970

Hon. Dorsey B. Hardeman Opinion No. lvL6a7 ExeoutiveDirector TexasWater 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 authorizedhear& 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 statutoryhearings;such as on late filed claims and petitions and adjudication, proceedings,by.and through a duly authorizedhearing examiner for its subse+ent consideration?" attentionis invited to Section 9, of Art. 7542awhich provides for the notice and procedure for taking evidence in all proceedingsunder the Water Rights AdjudicationAct. 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 evidencemay be taken.by a duly appointedreporter before the Commission or its authorised,representativewho also shall have the power to.administeroaths." (Emphasisadded)
In the exercise of administrativeduties required of the Texas Water Rights. Commission pursuant to Article 7542a, including matters of ,late.filingor the public hearings required tQ lay out the preliminary Andyfinal determinations,persons designated by the Commission (whetherlegal, engineering or otherwise qualified)~,-may'hold &e.p.ublic.hearingsso.long as transcripts of'the evid.enQe:atthe former hearings are available, to the Commissiori

when~it acts on such reports, and~provided-suchexaminers prepare ,areportwith 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);.2Am.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'adecisioxiwithout actually conducting the hearing; Varian's Estate vl Comtnissioner,393.,F.2d 75,3(9thCir. 1968),.cert., den.. -U.S. 962. The 'decision-making,".mus't be:done by Texas Water Rights Commissidn.basedon cqnsideratiQn.ofthe available,record'and withor without conference or.oral.,discussion with the hearing examineri This is made'plainby the Magnolia opinion, supra.'.

examiner'swritten 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 hearingsand take testimony, this right of your State agency to use examiners is an "impliedpowe~r-@',-because of the nature and extentof 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 officeswhich make up the agency. Shreveport En-. 8 g ., Inc. v. U.S., 143 F.2d 222, (5thCv. 323 U.S. 749, r-n. 329 U.S. 815); Krug v. Lincoln N%onal Life, 245 F.2d 848 (5thCir. 1957);Anderson v. Grand RiverDam Authority, 446 P.id 814 (Okla.Sup.l- ex-nt. articleoutlining ins detail the procedure used throughoutpast yearsby the Texas Railroad Commission is found in 18 Southwestern Law Journal 406, "Practice and Procedure in Oil and Gas Hearings in~Texas)"by Greenhill,andMcGinnis. Texas Water Rights Commissionersin their consideration of the case are not confined to evidence actuallybrought out at the examiner's hearing, and can rely upon informationdisclosed 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).. 'Therule allowing use of examiners is also found in AmericanJurisprudence,Administrative Law, Section 407, 217-18,ae follows:

"Neitherdoes due process of law or the concept of.a 'fairor a full hearing require that the actual taking of testimony be before the same officers as are ~todetermine the matter involved. Whether or not expressly authorizedby.statute, it is permissible and does not render a hearing inadequate or unlawful; for an administrativeagency to employ the panel method of hearing inwhich one or more Of the members~oftthe agency takes the testimony in the matter before the agency, or to employmotherpersons 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 (5thCir., 196

5)ge 60616, Sec. 7; Dan M.. t. Creed, Inc., v. Tynan, 151 **corm..** 677, 202 A.2d 239 (1964).

SUMMARY -__---- Texas Water Rights Commission may employ the examinermethod of procedure under Section 9 of the Water Rights Adjudication Act. This power to use examiners is further implied in all 'proceedings by the Commissionwhere 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

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