Auwl-rx. TEXAl3 78711 .--- 

-I 

August 28, 1970 I 

Hon. 0. F. Dent Opinion No. M- 674 

Chairman 

Texas Water hta Commission 'Re: Several Questions conP. 0. Box 123 cernlng filing and adCapitol Station 

Austin, Texas 78711 

judicatlon of claims 

under the Water Rights 

Adjudication Act of 1967 

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

You have requested our opinion as to the correct 

statutory construction of Section 4 of the Water Eights 

Adjudication Act (Chap. 45, (S.B. 92), page 86 Acts of the 

60th Leg., Regular Session, effective August 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 

riparian water rights, all claims under 

Article 7300 R i d Ci 11 Statutes of Texas, 

1922 to imp%ndevd~~ert ir use public waters 

of tie state for'other than domestic or livestock purposes for whLch no permit has been 

issued, all claims of water riuhts under the 

Irrigation Acts of 1669 and l&5!& which were 

not filed with the State Board of Water 

bngineers In accordance with 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 Section applies 

shall be recognized only if valid under 

existing law 8nd only to the extent of 

the maximum actual application of water 

to beneficial use without wsete during 

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* . 

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

On or before September 1, 1969, every 

p erson c 1 a i m ing a ny weter right to which 

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 watercourse end 

the river basin in which the right is 

claimed, the date of commencement of 

works, the dates and volumes of use of 

w, together with such other lnformaThomas may be required by the Commission 

to show the nature and extent of the 

claim. Each claimant or owner shall be 

required to certify under oath that the 

statements made in support of his claim 

are true and correct to the best of his 

fore July 1, 1971 . The Commission ahaY 

prescribe forms for the sworn statements, 

but use of Commission forms shall not be 

mandatory. On or before JanU8Iy 1, 1968, 

8nd June 1, 1969, the Commission shall 

cause notfce of the requirements of this 

Section to be published once each week for 

two (2) consecutive weeks in newspapers 

having general circulation in each county 

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

of the state and by first class mall 

to each user of surface water 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 

utilization of the water resources of the 

state; therefore, failure to file the sworn 

statement or statements with the Commission 

In substantial compliance with this Section 

shall extinguish and bar any claim of water rights 

to which this Section applies, 8nd thereafter 

no such right shall be recognized. !rhe 

sworn statements required by this Section 

shall be binding on the person submitting 

the statement and his successors in 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 exist prior 

to the effective date of this Act. This 

Section shall not apply to use of water for 

domestic or livestock purposes." 

(Emphssis Added) 

By your question number 1, you ask whether subsection (a) 

applied to or included intended use of water at some future 

time and whether your Commission must recognize such filed 

claims prior to adjudication. 

-3219- 
. 

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

We have concluded that such filed papers 8re merely 

what you have denominated them --- "claims," and that before 

these can be recognized by Tex8s Water Rights Commleeion, 

each must be finally adjudicated so as to take Its place In 

the files 88 an approprlatlve right to use waters of the 

State along with the permits and certified filings. If by 

"recognizing" such water right claims you mean to suggest 

that Texas Water Rights Commission m8y evaluste any one or 

several claims for water prior to final conclusion of the 

procedures provided for In Section 5 of the Water Rights 

Adjudication Act, we must advise that in our opinion such 

cannot be done. This is necessarily so because a state, 

agency m8y only exercise powers speclflcslly grsnted to it 

bv law or which are reesonablv necesearilr lmnlied from a 

siecific grant 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 therefore wk are of the opinion that It ls,,onl 

in a Section 5 procedure that Texas Water Rights Co miii&ion 

has the power to evaluate the merits of any claim filed under 

Article 7542a. 

Under this Section 5, full provision Is made for 

notices, hearings and adjudication of claims to the use 

of State-Owned waters, together with an appeal to the 

Courts for confirmation thereof. Thls is a complete 

procedure for all adjudications of the merits of a claim. 

By question 2 through 5, inclusive, you refer to the 

provisions of the Water Rights Adjudication Act (Art. 7542a) 

and ask whether the Texas Water Rights Commlselon may now 

use a lack of evidence of beneficial use of water as a 

reason for Texas Water Rights Commleslon to hold that 

"extenustlng clrcumstsnces 8nd good iZause" are not shown by 

a claimant who now at a time after September 1, 1969) seeks 

to file his claim o $ future intended use with the Commission. 

As 8 corollary to this you Inquire whether 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 

rejection of those water right claims which do not show any 

beneficial use of water between the calendar years 1963 and 

1967, inclusive, or such other use period allowed by the law. 

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

It is our opinion that Texas Water Rights Commission 

may consider all sorts of evldentlary matters which are 

relevant to the tardiness of a claimant In filing hle clelm 

late, but that final evaluation of such claims of water 

rights where go-use or extenuation for lateness in 

filing Is shown must await final evaluation under Section 5 

of the Water Rights Adjudication Act. Texas Water Rights 

Co~iSSiOn ha8 no power or duty t0 review C18imS prSViOUSly 

filed under this statute before September 1, 1969, without 

holding a Section 5 adjudication. As to claims now offered 

as "late" claims for filing with a plea of "good cause" to 

excuse and extenuate the 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 receive notices as to all water application 

until the claim 1s finally held invalid. This procedure is 

expressly provided for In Article 7509, Vernon's Civil 

Statutes, which is a statute required to be construed in 

pari materla with the Water Rights Adjudication Act. To 

hold otherwise and allow a more summary or different review 

than that prescribed by 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 Commission to accelerate the sdjudicatlon of 8 

stream or segment thereof either on receipt of a proper 

appllcstlon therefor, or on its own motion, Nor is the 

Commission precluded from seeking judlclal.review of any 

Individual water right In a court of law, since Article 

7928 does not create a "primary jurlsdlctlon* in the Texas 

Water Rights Commission which would in effect, place 

cancellation or ad.ludicatlon exclusively in the Commlsslon 

to the exclusion of a court. Rarrington v. State, 407 S.W.2d 

467 (Tex.Sup. 1966). We do hold h ereln that dmlnlstrative 

review of the merits of a proffered water rlg:t claim by 

Texas Water Rights Commission may only be accomplished under 

the procedures set out in Section 5 of the Water Rights 

Adjudication Act, and that such a claim may not be finally 

evaluated by administrative order in a different proceeding 

or manner from that prescribed by the Legislature. As to 

recognition of the filed claims, or of those now accepted 

on "good cause" shown for lateness In filing, such purported 

-3221- 
. 

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

~. claims must be given mail notices by Texas Water Rights 

-Commission prior to being finally adjudicated under the law. . . . '1. 

------- SUMMARY 

Texas Water Rights Commission may only pass on 

the Issue of whether good cause Is shown as to 

claims presented under the Water Rlghst Adjudication Acts, whether such were presented before 

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 hereafter and filed for good cause shown, 

are water rights entitled notices by certified 

mail pursuant to Artlcl J V.C.S. until 

finally adjudicated no a water right. 

Prepared by Roger Tyler 

Assistant Attorney 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 

Executive Assist8nt 

NOM WHITE 

First Assistant 

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