Hon. H. A. Beckwith, Chairman Board of Water Engineers Austin, Texas OpinionNo. V-1297

Re: Requirement for notice and hearing upon application for change of place of use of permittedwaters and the fees to be charged Dear Mr. Beckwith: upon such an application.

Your first question Iswhether it is mandatory for theBoard to Issuenotice and hold a hearing upon an application for change of place of use of permittedwaters.

In an opinionwritten by this office on February 10, 1921 (Att'yGen. Ops., Bk.55, p.149, published in Report and Opinions of Att'y Gen., 1920-1922, p.789), .itwas held .that

an application for change of purpose of use '"s~hould

be treatedas an original one, requiring advertisement,public hearing, etc., In likemanner as if itwere an originalapplication for an originalpermit." (Emphasis supplied throughout.)Recognition and approval of this opinionwas given inAtt'y Gen. Op. O-3397 (19&l),dealingwith the change of place of use.

In OpinionV-390 (1947)addressed to the Chairman of theBoard of Water Engineers, this office held that "whenpassing on application for change of purpose and place of use, you are performingan administrative function, onewhich concerns regulation
or supervision of an already issuedpermit, and In fulfilling this functionyou determine in theusual manner after public notice and hearing, if the proposed change will be for a purpose authorizedby statute,will lmpair existing rights, and the publicwelfare Involved In the change.*Hon. H. A. Beckwith - Page 2 (V-1297)

Prior to Clark v. Briscoe Irr.Co., 200 S.W. 2d 674 (TeX.ClV.App.l947),the courts of this State 'hadnever passed on the question of your authority to entertainan application for change of purpose or place of use. In deciding this question in the affirmative, the court held, at page 682:

II

. 0 aNo right of appropriation may be acquiredwithout application to the Board, setting forth the place and purpose of use, and a permit granted by theBoard designating the place and purpose of use. The Board is chargedwith the duty of duly informing itselfupon. all matters relating to theproper performance of Its duties in passing upon the application; is required to have a hearing~after due notice to all Interested parties; and IS chargedWith the express duty to determine, Inter alla, whether granting the permit will best subserve the public interest.

"These statutoryprovisions clearly invest theBoard with thepower and duty to determinewhether the uses forwhich the application ismade meet the statutory objectives, including that of being in the public interest. Necessarily the determination of that Issue Involves the exercise of a sound and reasonable discretion. Nor is it contended that the Board has not such discretion in passing upon an original application.

"Every consideration for vesting such originaldiscretion in'theBoard applieswith equal force for its exercise in case of change of purpose or place of
use

. e *"

The foregoing decision and opinions draw the Board's authority to entertain an application for change in place of use from the various statutoryprovisions dealingwith an originalpermit and relate the function performed by the Board upon such an application to these statutoryprovisions. The matter of notice andHon. H. A. Beckwlth - Page 

### 3 (V-1297)

hearing on the~originalpermit is covered by Articles 

### 7508,7509, and 

### 7510,V.C.S. Article 

### 7508provides that "before the Board shall approve such an appllcationpar originalpermlfl and Issue any suchpermit, notice of such application shall be given." Article 7509 provides that "suchnoGshall.be published" and that "a copy of such notice shall be transmitted

. . . to each claimant or appropriator ofwater from such source of water supply." Article 

### 7510provides that the Board "shall sit to hear such application” at the timeanmce stated in thenotice.

Inasmuch as the Board's authority to entertain an application for change is drawn from, and is related to, the function it performsupon the original permit application, it would seem that themandatory provisions of Articles 

### 7508,7509, and 

### 7510apply and require notice and shearing upon application for change of purpose and place of use. 

### We construe this to be the effect of the holdings of the Clark case and the quoted oplni~ons

of this office. Ifare correct in this, thennotice and hearing are jurisdictional In the sense that the permit upon changewould not be validwithout ,them. If the permit is to be assured of validity, the only safe course is to treat the matter of notice and hearing as mandatory.

Your other question dealswith the fees to be chargedupon a pending application for change of place of use. The applicantpaid themaximum use fee required by Article 7532when he acquiredhis original permit and contends that this excuses him from paying the filing, recording, and postage feeswhich you seek to exact under Articles 7532 and 

### 7511,V.C.S.

Article 7532 provides for four separate and distinct types of fees, viz, filing, recording, certification,and use. After setting out the amounts tobe charged for filing, recording,and certification, the statuteprovides:

"In addition to the fees herein otherwiseprovided there shall be paid to the Board for the benefit of the State the following fees upon each application for a permit to acquire a water right:.

Hon. H. A. Beckwith - Page 4 (V-1297)

"For the use of water for irrigation, ten cents per acre for each acre to be Irrigated.

"For the use ofwater for hydraulic power twenty-f- cents for each theoretical horsepower.

"Foruse of water for steam or gas power planTcoolIng, condensing or steam purposes twenty-five cents for each indicated, horsepower.

"For other uses not specifically named herein twenty-fivecents per acre foot based on estimated annual consumption.

"For the use ofwater for parka, pleasure resorK game preserves, twenty cents per acre foot of storage,based on the holding capacity of reservoir.

"Themaximum fees for any use ofwater under a nermlt shall not exceed one thousand - fivehundred dollars and for each additional
use under the same permit for which such maximum fee is paid the fee shallnot exceed twohundred dollars in addition to said sum of one thousand five hundred dollars."

To us this language clearly relates the statutory maximum to the fee collectible for the use of water. The use fee Is payable to the State for the use of Itswaters. The filing, recording, and certiflcation fees are paid to the State for services rendered by the Board. Article 

### 7511simply requires the applicant to pay ~themailing and publication costs upon issuance of notice of hearing. This charge and the filing, recording, and certification fees due under Article 7532 are separate and distinct from the maximum fee which can be charged for use and are therefore to be paid and collected in addition to the use fee. By the same analogy drawn above with respect to notice and hearing, these fees are to be chargedupon'an application for change of purpose or place of use the same as upon an original appropriation application.Hon. H. A. Beckwith - Page 5 (V-1297)

SUMMARY

Notice and hearing are mandatory upon all applications for change of purpose and place of use of permittedwater. The filing, recording, certification,and postage fees prescribedby Articles 7532 and 

### 7511,V.C.S., are collectibleupon such an application even though the appllcant paid themaximum statutoryuse fee when securinghis originalappropriation permit.

Yours very truly

PRICE DANIEL Attorney General

HDP:bt

APPROVED:

Jesse P. Luton, Jr. Reviewing Assistant

Everett Hutchinson Executive Assistant

Charles D. Mathews First Aaslstant H. D. Pruett,Jr. Assistant