State Board of Water Engineers 

Austin, Texas 

Attention: Mr. J. E. Sturrock 

Gentlemen: 

Opinion No. O-1993 

Re: Constitutionality of Article 

7500a, V.A.C.S., and the validity of the proviso contained in Section 16, Ch. 88, 

General Laws, 35th Legislature; 

overruling letter opinions of 

the Attorney General, Stone, 

July 31, 1925 and Clark, May 

20, 1927; and adopting letter 

opinion, Stone dated July 18, 

1925 and Clark, dated May 20, 

1927, and conference opinion, 

Smedley dated August 25, 1917. 

We have your letter of February 21, 1940, End its enclosures, 

requesting that we answer the following questions: 

"1. Is Article 7500a, Vernon's Revised Civil 

Statutes valid? 

"2 ; If Article 7500A is void, is Section 16, 

‘Ch. 88, General Laws, 35th Legislature, the 

law?" 

You enclosed a Conference Opinion of this Department dated 

August 25, 1917, written by Honorable G. B. Smedley, Assistant, to the Secretary of the Board of Water Engineers, hereafter referred to as the Smedley opinion. It holds that the 

proviso contained in Section 16, Chapter 88, General Laws, 35th 

Legislature does not give a landowner permission to impound 

or use without a permit, the water impounded by a dam or reservoir constructed on his own land, but that it merely gives 

such person the right to construct such a dam or reservoir 

without submitting his plans to the Board of Water Engineers 

for approval. 

Also enclosed, were ccples of letter opinions of this department given the Board of Water Engineers as follows: 
. . 

State Board of Water Engineers, page 2 (O-1993) 

July 18, 1925, C. L. Stone; July 31,’ 1925, C. L. Stone; 

May 20, 1927, Allen Clark; and August 27, 1927, Allen 

Clark. These will be referred to as the first and second 

Stone opinion and first and second Clark opinion respectively. 

The first Stone opinion and the first Clark opinion both hold 

Section 5 (Article 7500a V.A.C.S.) Ch. 136, General Laws of 

the 39th Legislature (the 1925 Act) unconstitutional, because 

of the irreconcilable conflict between the caption of the 1925 

Act and said Section 5. The second Stone opinion holds that 

Section 16 of the 1917 Act was expressly amended by Chapter 

136, General Laws of the 39th Legislature, that Section 7, 

Ch. 136, General Laws of 1925, 39th Legislature, provides for 

the repeal of all laws in conflict with the provisions of said 

Section and Chapter, and that, therefore, no law exists authorizing a person to construct on his own property a dam or reservoir to impound and contain water in any amount without 

securing a permit therefor. The first Clark opinion also holds 

that Section 5 of the 1925 Act being unconstitutional, it does 

not effect a repeal of the 

t 

roviso contained in Section 16, 

then contained in Article 7 96, V.R.C.S., as it read prior 

to the passage of the 1925 Act now contained in the Historical 

Note to Article 7496, V.A.C.S. in the new volume 21 of the 

Vernon's Annotated Civil Statutes. Thus, the second Stone 

opinion and the first Clark opinion are in conflict. 

The second Clark opinion holds that, inasmuch as the attempted 

amendment contained in the 1925 Act is void, the proviso contained in Section 16 of the 1917 Act, is si.311 in effect; and 

that it authorizes a person owning lands to impound less than 

500 feet of water on his own property withcut securing a permit therefor from the Board of Water Engineers. 'This opinion 

makes no reference to the Smedley opinion and the two are in 

direct conflict. The Medley opinion being a conference 

opinion takes precedence over the Clark opinion and is, in our 

opinion, correct. 

In addition to answering your questions, we will eliminate 

these conflicts. 

The proviso contained insection 16 of the 1917 Act reads as 

follows: 

I, .provided, however, that nothing in this 

section or in this Act shall affect or restrict the right of any person or persons, 

owning lands in this State to construct on 

his own property any dam or reservoir which 
. 

State Board of Water Engineers, page 3 (O-1993) 

would impound or contain less than five hundred acre-fcet?of,water." 

For a proper understanding of the problem, it is necessary to 

quote at length from the 1925 Act: 

"S.B. No. 349 Chapter 135 An Act relating to 

the appropriation and use of water and providing that such water mav. in addition to 

other-uses, be appropriated and used for purposes of public parks, game preserves, recreation and pleasure resorts, power and water 

supply for Industrial purposes and domestic 

use; amending Section 16, Chapter 88, Acts of 

the Regular Session of the Thirty-fifth Legislature, providing for the filing of presentations relating to Investigation of the 

use of water and the terms and conditions 

thereof, that priority of right dates from the 

filing of same, that such rights shall extend for a period of six months and may be 

extended by order of the Board of Water 

Engineers not to exceed a total period of 

three years and the requisites, conditions 

and operationof same; providing that the' 

fees paid upon the filing of a presentation 

may be held'for ~the term thereof or during 

the period of any extenslon'thereof and be 

handled according to law, and that all rights 

under a presentation shall cease at the lend 

of the term thereof unless a permit is is- 

‘sued in pursuance thereof; . . .providing that 

any one may construct on his own property a 

dam or reservoir to contain not to exceed 

fifty acre-feet of water without securing a 

permit therefor; . . . 

"Sec. 2. Amend Section 16, Chapter 88, Acts 

of the Regular Session of the Thirty-fifth 

Legislature, so that same shall hereafter 

read as follows: 

I, 

. . . 

“Sec. 5. Any one may construct on his own 

property a dam and reservoir to impound or 

contain not to exceed two hundred and fifty 
State Board of Water Engineers, page 4 (O-1993) 

acre feet of water wiLha:.ut the necessity 

of securing a permit therefor. 

11 . . 

"Sec. 7. All laws in conflict with the 

provisions hereof are hereby repealed." 

(Underscoring ours). 

The first Stone opinion and the first Clark Opinion are in 

accord in holding Section 5 of the 1925 Act (Article 75OOa, 

V.A.C.S.) to be in contravention of Article 3, Section 35 

of the Texas Constitution, and void, because the caption, 

which provides for fifty acre-feet and the body of the bill, 

for two hundred and fifty acre-feet are in irreconcilable 

conflict. We adopt the first Stone and first Clark opinions 

to this extent and your first question is answered in the 

negative. Ft. Worth and D. C. Ry. Co. v. Loyd, 63 Civ. 

47, 132 S.W. 899 (error refused 

B 

App. 

; Sutherland v. Board of 

Trustees (Civ. App.) 261 S.W. 4 9 (error refused); Ward 

v. State, 102 Crim. Rep. 204, 277 S.W. 672; 39 Tex. Jur. 

100. The reasons for this holding are more fully set out 

under our discussion of your second question, as the preliminary problems arising out of both are very similar. 

The caption of the 192.5 Act expresses a general purpose, as 

Indicated by the underscoring; It names Section 16 of the 

1917 Act as one of those amended, an? sets out the subject 

matter of the amendment in detai:l. 'The capt,ion does not 

state that Section 16 is expressly repeal&; whether it 

was so intended must be determined befcre yc:ur second question ‘can be correctly answered. Section 5, yroFerly construed, covers the same subject matter as th;+ proviso oft 

Section 16. Apparently, t,he Legisle"ure intended that Sec5 should take the place of the proviso I and tha,t i,t should 

repeal that much of Section 16, WJ vi.rtue of Sect?-on 7, the 

repealing clause of the 1925 Act. 

Section 5 being void, it cannot, have the effect of repealing 

the proviso. It is a nullity and has no more effect than 

if it had never been passed. Consolidated Underwriters v. 

;it;by4vTber Co. (Corn. App.) 267 S.W. 703, (revising 250 

565; 

Culberson v. 

39 $ex. Jur. 128. 

Ashford, 118 Tex. 491, 18 S.W. (2d) 

Lewis" Sutherland Statutory Construction, Sec. 245; barshall v. State, 62 Crim. Rep. 177, 

138 S.W. 759. Therefore, the second Stone opinion, holding 

that Section 5 repealed the proviso is in error and is hereby overruled. 
State Board of Water Engineers, page 5 (O-1993) 

From their opinions, it appears that neither Mr. Stone nor 

Mr. Clark considered the question of whether or not Section 

2 of the 1925 Act, which set out at length the amended Section 16, repealed Section 16 as written in the 1917 Act. 

This is the most difficult of all the questions involved, 

for the case of State v. Andrews, 20 Tex. 128 squarely holds 

that "an amendment operates to repeal any provision of the 

original act or section that is omitted." 39 Tex. Jur. 128. 

The act considered in the Andrews case amended a former act 

by providing that its first section "shall hereafter read as 

follows," which is the identical wording of Section 2 of the 

1925 Act, Section 2, in amending Section 16, likewise made 

an omission, the proviso. 

However, in our opinion, the proviso was not repealed by 

Section 2 of the 1925 Act, first, because the rule of the 

Andrews case seems to have been restricted by the later 

cases, and second, if such was the intention of the Legislature in enacting the 1925 Act, the caption is misleading 

in that, although it particularly sets out the contents of 

Section 16 as amended, it fails to give notice that the proviso is omitted or repealed; and further, it fails to point 

out that Section 2, purports to replace Section 16 and repeal the omitted portions. In fact, a contrary purpose was 

expressed in the caption namely, not to abolish the right 

to' construct a dam on private property, without submitting 

plans to the State Board of Water Engineers, but to reduce 

from 500 to 50 acre-feet, the impounding capacity of the 

dam which could be so constructed. 

The caption of the Act considered in the Andrews case merely 

contdined references to the acts and sections amended; the 

distinction is that it did not go farther and set out with 

particularity, the contents of the amended section, as does 

the caption of the 1925 Act. In this regard, we quote and 

adopt the following pertinent language from the case of 

Rodgers v. Tobias, (Civ. App;) 225 S.W. 804 (error refused), 

similar on its facts, which held the Act there in question 

violative of Article 3, Section 35 of the Constitution, for 

the want of an adequate caption: 

"It cannot therefore be given the effect of a 

mere simple reference in a general way, but would 

be interpreted by the rule that 'the mention of 

one thing is the exclusion of another'. . .The 

title here having gone beyond a simple reference 

to the prior law, in that it specifies the parti- 
State Board of Water Engineers, page 6 {O-1993) 

cular field the amendmert is to cover, will nat 

be held ts furniE,L tkie p'r,:per l?glslat:l.ve >relude to an act dealing with a wl-ally different 

subject. . ." 

To the same effect, see Holman v. Pabsf, 27 S.W. (2d) 340 

(error refused); Ward Cattle and Pastare Co. v. Carp;tnter, 

log Tex. 103, 200 S.W. 521, affirming 168 S.W. 408; Adams 

v. San Angelo Waterworks Co., 86 Tex. 485, 25 S.W. 605; 

39 Tex. Jur. 103. 

The 1917 Act, Article 7466, V,A.C.S. declare-l certain. public rights and duties with respe,:t tz i;he conservation of 

the public waters and proceeded tc regulate their use. The 

proviso of Section 16 of t5e Ac% reserved to the landowners 

a certain right or privilege. If by the 1925 Act, the Legislature intended 'co abolish this right or privilege, it should 

have said so in clear language, giving reasonable notice in 

the caption. In our opinion, it did not do this; it, did 

not comply with the requirements of Article 3, Section 35 

of the Constitution. 

The effect of an omission, similar to t:hs ene here, wa.s considered in the case of Chapman v. Morrison et a?., 278 S.W. 

236 and we adopt Juc7-ge Fly's language .wit;h reference to the 

caption: 

'No reference is made to chang:lng t&r a.rtlcle 

so as t;o destroy an importart; privilege of the 

citizen enjoyed by him ever sive -the state came 

into existence. T.f it w-s ::he +r,,tsnt:icn t.3 destroy that, privilege, then t:he f"ctiPe 1,s .:lea,rly 

‘unconstitutional, in that ti:e tit1.e 3,ces net 

state that Me air? wa.s pa.sse' -i-c "e5t'rc.y tJ-1+$ 

right. . .' 

Judge Fly's opini_on was cite-l an'. P~:llrwe;! .in the cases of 

Globe Indemnity Cc. v. Barnes, 280 S-W, 275, affirmed 288 

S.W. 121; Tasbut:tc;n v. M'brig, 282 S.W, 891 and Rumble Oil 

and Ref. Co. v. Anirews, iciv. App.11 279 S.W. 300, all of 

which involved the same statute. Also, see Lone Star Cas 

Co. v. Birdwell, (Civ. App.) 74 S.W. (2d) 294; Holman v. 

Pabst, supra; 39 Tex. Jur. 104. 

Section 2 of the 1925 Act provi-les that; Section 15 "shall 

hereafter read as follows" and omits t,he proviso. However, the caption did net state that Section 16 should 

"hereafter read" as set out in the Act. They are in con- 
State Hoard of Water Engineers, page 7 (@-1993) 

flict to this extent,. If the caption had merely st,a+ed that 

Section 16 of the 1925 Act was amended, we would feel bound 

to hold the caption sufficient and the words "hereafter read," 

contained in the Act, sufficient to effect a repeal of the 

proviso. State v. Andrews, supra. But, such is not the case, 

as heretofore pointed out. 

Summarizing our holding, you are respectfully advised: 

1. That Article 7500a, V.A.C.S., Section 5, 

Ch. 136, General Laws of 1925, 39t.h Legislature is unconstitutional and that the letter 

opinions of the Attorney General so holding, 

dated July 18, 1925 and May 20, 1927, written 

by C. L. Stone and Allen Clark respectively, 

are hereby adopted; 

2. That the proviso attache3 to Section 16, 

Ch. 88, Gen.eral Laws of 1917, 35th Legislature, and which is to be found in the Historical Note to 7496, V.A.C.S. was not repealed by Section 2, Secticn 5, or Section 7, 

Ch. 136, General Laws of 1925, 39th Legislature and that same is now in full force and 

effect; and, that the letter opinion of the 

Attorney General, so holding, dated May 20, 

1927, is hereby adopted; 

3. That the letter opinion of the Attorney 

General written b,y C. L. Stone and dated 

July 31, 1925, is expressly overruled and 

withdrawn; and 

4. That the conference opinion of this department dated August 25, i917, written by 

Hon. G. B. Smedley, constru?n$ the proviso 

contained in Section 16 is hereby adopted, 

and the letter opinion of the Attorney General dated August 27, 1927, written by Allen Clark, which is in conflict with the 

Smedleyopinion is hereby overruled and withdrawn. 

JN:eaw 

Yours very truly, 

ATTORNM GENERAL OF TEXAS 

APPROVED MAY 8, 1940 

ATTORNEY GENERAL OF TEXAS 

By James Noel 

Assistant