Hon. H. A. Beckwith, Chairman 

Board of Water Engineers 

Austin, Texas Opinion No. V-1297 

Re: Requirement for notice 

and hearing upon application for change of place 

of use of permitted waters 

and the fees to be charged 

Dear Mr. Beckwith: upon such an application. 

Your first question Is whether it is mandatory 

for the Board to Issue notice and hold a hearing upon an 

application for change of place of use of permitted waters. 

In an opinion written by this office on February 10, 1921 (Att'y Gen. Ops., Bk.55, p.149, published 

in Report and Opinions of Att'y Gen., 1920-1922, p.789), 

.it was held .that an application for change of purpose 

of use '"s~hould be treated as an original one, requiring 

advertisement, public hearing, etc., In like manner as 

if it were an original application for an original permit." (Emphasis supplied throughout.) Recognition and 

approval of this opinion was given in Att'y Gen. Op. 

O-3397 (19&l), dealing with the change of place of use. 

In Opinion V-390 (1947) addressed to the 

Chairman of the Board of Water Engineers, this office 

held that "when passing on application for change of 

purpose and place of use, you are performing an administrative function, one which concerns regulation 

or supervision of an already issued permit, and In fulfilling this function you determine in the usual manner 

after public notice and hearing, if the proposed change 

will be for a purpose authorized by statute, will lmpair existing rights, and the public welfare 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 

'had never passed on the question of your authority to 

entertain an application for change of purpose or 

place of use. In deciding this question in the affirmative, the court held, at page 682: 

II . 0 a No right of appropriation 

may be acquired without application to 

the Board, setting forth the place and 

purpose of use, and a permit granted by 

the Board designating the place and purpose of use. The Board is charged with 

the duty of duly informing itself upon. 

all matters relating to the proper performance of Its duties in passing upon 

the application; is required to have a 

hearing~after due notice to all Interested 

parties; and IS charged With the express 

duty to determine, Inter alla, whether 

granting the permit will best subserve the 

public interest. 

"These statutory provisions clearly 

invest the Board with the power and duty 

to determine whether the uses for which 

the application is made 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 original discretion in'the Board 

applies with 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 statutory provisions 

dealing with an original permit and relate the function 

performed by the Board upon such an application to 

these statutory provisions. The matter of notice and 
Hon. H. A. Beckwlth - Page 3 (V-1297) 

hearing on the ~original permit is covered by Articles 

7508, 7509, and 7510, V.C.S. Article 7508 provides 

that "before the Board shall approve such an appllcation par original permlfl and Issue any such permit, 

notice of such application shall be given." Article 

7509 provides that "such noGshall.be published" 

and that "a copy of such notice shall be transmitted 

. . . to each claimant or appropriator of water 

from such source of water supply." Article 7510 provides that the Board "shall sit to hear such application” at the time anmce stated in the notice. 

Inasmuch as the Board's authority to entertain an application for change is drawn from, and is 

related to, the function it performs upon the original 

permit application, it would seem that the mandatory 

provisions of Articles 7508, 7509, and 7510 apply 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, then notice and hearing are jurisdictional 

In the sense that the permit upon change would not be 

valid without ,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 deals with the fees to 

be charged upon a pending application for change of 

place of use. The applicant paid the maximum use fee 

required by Article 7532 when he acquired his original 

permit and contends that this excuses him from paying 

the filing, recording, and postage fees which 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 

to be charged for filing, recording, and certification, 

the statute provides: 

"In addition to the fees herein 

otherwise provided 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 of water for hydraulic 

power twenty-f- cents for each theoretical horsepower. 

"For use 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-five cents per acre 

foot based on estimated annual consumption. 

"For the use of water for parka, 

pleasure resorK game preserves, twenty 

cents per acre foot of storage, based on 

the holding capacity of reservoir. 

"The maximum fees for any use of water 

under a nermlt shall not exceed one thousand - 

five hundred dollars and for each additional 

use under the same permit for which such 

maximum fee is paid the fee shall not exceed 

two hundred 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 Its waters. The filing, recording, and certiflcation fees are paid to the State for services rendered 

by the Board. Article 7511 simply requires the applicant to pay ~the mailing 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 

charged upon'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 permitted water. 

The filing, recording, certification, and 

postage fees prescribed by Articles 7532 

and 7511, V.C.S., are collectible upon 

such an application even though the appllcant paid the maximum statutory use fee 

when securing his original appropriation 

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