Auwl-rx. TEXAl3 78711 .--- -I August 28, 1970 I

Hon. 0. F. Dent OpinionNo. M- 674 Chairman Texas Water hta Commission 'Re: Several Questions conP. 0. Box 123 cernlng filing and adCapitol Station Austin, Texas 

## 78711 judicatlonof claims under the Water Rights Adjudication

Act of 1967 Dear Judge Dent: (Art.7542a, V.C.S.).

You have requestedour opinion as to the correct statutoryconstructionof Section 4 of the Water Eights AdjudicationAct (Chap. 45, (S.B. 92), page 86 Acts of the 60th Leg., Regular Session, effectiveAugust 28 Article 7542a, Vernon's Civil Statute6 of Texasj. 1967;

Section 4 of the Act reads as follows: ‘L(a) This Section applies to all claims of riparianwater rights, all claimsunder Article 7300 R i d Ci 11 Statutesof Texas, 1922 to imp%ndevd~~ert ir use public waters of tie state for'other than domesticor livestock purposes for whLch no permit has been issued, all claims of water riuhtsunder the IrrigationActs of 1669 and l&5!& which were not filed with the State Board of Water bngineers In accordancewith the Irritation Act of 1913, as amended, and all other claims of water rights other than cla 6 under permits or certified filing 8. "(b) Any claim to which this Sectionapplies shall be recognizedonly if valid under existing law 8nd only to the extent of the maximum actual applicationof water to beneficialuse without wsete during

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Hon. 0. F. Dent, page 2, (M-674)

On or before September 1, 1969, every p 1 i ing ny weter right to which erson c a m a this Section applies shall file with the Commission 8 statement setting forth the name and address of the claimant, the ‘location

and the nature of the right claimed, the stream or watercourseend the river basin in which the right is claimed, the date of commencement of works, the dates and volumes of use of w, togetherwith such other lnformaThomas may be requiredby the Commission to show the nature and extent of the claim. Each claimant or owner shall be required to certify under oath that the statementsmade in support of his claim are true and correct to the best of his

fore July 1, 1971

. The CommissionahaY prescribe forms for the sworn statements, but use of Commissionforms shall not be mandatory. On or before JanU8Iy 1, 1968, 8nd June 1, 1969, the Commissionshall cause notfce of the requirements of this Section to be published once each week for two (2) consecutive weeks in newspapers having general circulationin each county

-3218-Hon. 0. F. Dent, page 3, (M-674)

of the state and by first class mall to each user of surfacewater who has filed a report of water use with the

"(d) The filing of all claims to use public water is necessary for the conservation and blest utilizationof the water resourcesof the state; therefore, failure to file the sworn statementor statementswith the Commission In substantialcompliancewith this Section shall extinguishand bar any claim of water rights to which this Section applies, 8nd thereafter no such right shall be recognized. !rhe sworn statementsrequiredby this Section shall be binding on the person submitting the statementand his successorsin interest but ah811 not be binding on the Commission or any other person in interest. Nothing herein shall be construed to recognize any water right which did not existprior to the effectivedate of this Act. This Section shall not apply to use of water for domestic or livestockpurposes." (Emphssis

Added) By your questionnumber 1, you ask whether subsection (a) applied to or included intendeduse of water at some future time and whether your Commissionmust recognizesuch filed claims prior to adjudication.

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Hon. 0. F. Dent, page 4, (M-674)

We have concluded that such filed papers 8re merely what you have denominatedthem --- "claims,"and that before these can be recognizedby Tex8s Water Rights Commleeion, each must be finally adjudicatedso as to take Its place In the files 88 an approprlatlveright to use waters of the State along with the permits and certifiedfilings. If by "recognizing"such water right claims you mean to suggest that Texas Water Rights Commissionm8y evalusteany one or several claims for water prior to final conclusionof the proceduresprovided for In Section 5 of the Water Rights Adjudication

Act, we must advise that in our opinion such cannot be done. This is necessarilyso becausea state, agency m8y only exercisepowers speclflcslly grsnted to it bv law or which are reesonablvnecesearilrlmnlied from a siecificgrant of authority.-Ft. Worth &a& Club v. She ard 125 Tex. 339, 83 S.W 2d bbo 1935 * NO. 2 v. Mann, 135 Tex. 286, $42 S!i. The onlv Rower to sdjudicate is found in Section 5 of the act, and thereforewk are of the opinion that It ls,,onl in a Section 5 procedure that Texas Water Rights miii&ion Co has the power to evaluate the merits of any claim filed under Article 7542a.
Under this Section 5, full provision Is made for notices, hearingsand adjudicationof claims to the use of State-Owned

waters, togetherwith an appeal to the Courts for confirmationthereof. Thls is a complete procedure for all adjudicationsof the merits of a claim.
By question 2 through 5, inclusive,you refer to the provisionsof the Water Rights Adjudication Act (Art. 7542a) and ask whether the Texas Water Rights Commlselon may now use a lack of evidence of beneficialuse of water as a reason for Texas Water Rights Commleslonto hold that "extenustlngclrcumstsnces8nd good iZause" are not shown by a claimantwho now at a time after September1, 1969) seeks to file his claim o$ future intendeduse with the Commission. As 8 corollary to this you Inquirewhether the Commlsslon may now review all clajms, both those timely filed and those now offered for filing where "extenuating circumstances 8nd good C8uSe" 8re shown, with a view toward summary rejectionof those water right claims which do not show any beneficialuse of water between the calendaryears 1963 and 1967, inclusive,or such other use period allowedby the law.

-3220-Ron. 0. F. Dent, page 5, (M- 674)

It is our opinion that Texas Water Rights Commission may considerall sorts of evldentlarymatterswhich are relevant to the tardinessof a claimant In filing hle **clelm** late, but that final evaluationof such claims of water rights where go-use or extenuationfor lateness in filing Is shown must await final evaluationunder Section 5 of the Water Rights AdjudicationAct. Texas Water Rights Co~iSSiOn ha8 no power or duty **t0 review**  **C18imS prSViOUSly**  filed under this statutebefore September 1, 1969, without holding a Section 5 adjudication. As to claims now offered as "late" claims for filingwith a plea of "good cause" to excuse and extenuatethe lateness of the submission,the sole inquiry of the ConmIssion under Section 4 of the statute Is to pass upon the validity of the excuse for lateness alleged by such a tardy claimant. Thereafter, until final adjudication,those who filed claims In time or were allowed to file late must receivenotices as to all water application until the claim 1s finallyheld invalid. This procedure is expresslyprovided for In Article 7509, Vernon's Civil Statutes,which is a statute required to be construed in pari materlawith the Water Rights Adjudication Act. To hold otherwiseand allow a more summary or differentreview than that prescribedby the Texas Legislature would deny to a claimant the due process notice and hearing safeguards which Section 5 Is designed to provide.
This opinion does not prevent action by the Tex8s Water Rights Commissionto accelerate the sdjudicatlonof 8 stream or segment thereof either on receipt of a proper appllcstlontherefor,or on its own motion, Nor is the Commissionprecluded from seeking judlclal.review of any Individualwater right In a court of law, since Article 7928 does not create a "primary jurlsdlctlon*in the Texas Water Rights Commissionwhich would in effect,place cancellationor ad.ludicatlon exclusivelyin the Commlsslon to the exclusionof a court. Rarringtonv. State, 407 S.W.2d 467 (Tex.Sup.1966). We do hold hereln that dmlnlstrative review of the merits of a profferedwater rlg:t claim by Texas Water Rights Commissionmay only be accomplished under the proceduresset out in Section 5 of the Water Rights AdjudicationAct, and that such a claim may not be finally evaluatedby administrative order in a differentproceeding or manner from that prescribedby the Legislature. As to recognitionof the filed claims, or of those now accepted on "good cause" shown for lateness In filing, such purported

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Hon. 0. F. Dent, page 6, (M-674)

~. claimsmust be given mail notices by Texas Water Rights -Commission

prior to being finally adjudicated under the law.

. . . '1.
SUMMARY ------- Texas Water Rights Commissionmay only pass on the Issue of whether good cause Is shown as to claims presentedunder the Water RlghstAdjudication Acts, whether such were presentedbefore or after September 1, 1969. Final evaluation of all clsims on the merits must be accomplished pursuant to the procedures set forth in Sec. 5 of Ssid Act. Claims now filed, or which are accepted hereafterand filed for good cause shown,
are water rights entitled noticesby certified mail pursuant to Artlcl J V.C.S. until finallyadjudicatedno a water right.

Preparedby Roger Tyler AssistantAttorney General

APPROVRD: OPINION COMMITTEE

Kerna Taylor, Ch8irm8n W. E. Allen, Acting Co-Chainnan
Gordon Cass Linward Shivers A. J. Gallerano Tom Rullington

MEXDE F. GRIFFIN Staff Legal Assistant
ALFREDWALKER ExecutiveAssist8nt

NOM WHITE First Assistant

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