Honorable R. M. Dixon, Chairman 

Board of Water Engineers 

Austin, Texas 

Dear Sir: 

Opinion No. WW-188 

Re: Exemptions from payment of 

statutory fees by applicants 

before the Board of Water 

Engineers; and Board authority 

to use part of $250.00 money 

deposit for travel and ink-e,&- 

gation expenses. 

We quote from your request for an opinion as follows: 

“Attorney General’s Opinion No. V-803, dated April 4, 

‘1949, discussed at great length the fees that need not be 

paid to the Board of Water Engineers by public agencies 

- . such as the Brazes River Authority, Lower Colorado River 

: I’Authority, Upper Colorado River Authority and others. This 

“. Opinion No. V-803 referred to past opinions of the Departmentand overruled two of them, holding in effect, as we 

interpret it,, that Districts established pursuant to Section 

59. Article XVI of the Constitution are created to accomplish 

a publtc purpose and should be exempt from paying fees to 

the State. L” 

‘As you know, many river authorities covering entire 

watersheds, and special districts covering more limited 

areas, have been and will be created by the Legislature. 

In addition, water control and improvement districts and 

other types of water districts are being and will be created 

by this Board, by County Commissioners’ Couits, and, in 

rare instances,.by the governing bodies of municipal corporations (Article 7880-135, V.C.S.). Such districts derive,thetr 

constitutional authority from either Section 52 of Article III 

or Section 59 of Article XVI, although the latter is now the 

constitutional authority most frequently employed. Such 

districts and river authorities are tendering applications 

for water permits and presentations which Articles 7532 and 
Honorable R. M. Dixon, Page 2 (WW-188) 

7497, respectively, require shall be accompanied by certain 

specified fees. Quite naturally, the representatives of these 

agencies raise the question of their liability for payment of 

statutory fees. 

“Based upon the foregoing, your opinion is respectfully 

requested as to the following: 

“1. Are all river authorities and the various types of 

water districts created by the Legislature exempt 

from the payment of all statutory fees required to 

., be collected by this Board for the benefit of the State7 

If not, please list those which are not exempt. 

“2; Are water districts created by lawful means other 

than by the Legislature exempt from the payment 

of all statutory fees required to be collected by 

this Board for the benefit of the State? 

‘3. Are municipal corporations, when acting in the publit interest to develop a water supply, exempt from 

the payment of all statutory fees required to be colalected by this Board for the benefit of the State? 

U4. Are other political subdivisions of the State such as 

county governments and soil conservation districts, 

when applying for water appropriation permits or 

tendering presentations having as their object the 

conservation and development of the water resources 

of the State for public purposes, exempt from the payment of all statutory fees required to be collected by 

this Board for the benefit of the State 1 

.“In view of the fact that briefing the above-raised issues 

will require a complete study of the question of fees collected 

by this Board, we also request a re-analysis of Attorney 

General’s Opinion No. S-14, dated March 2, 1953, in which it 

was determined that the $250.00 deposit paid as required by 

Article 7880-21 could not be used except for certain designated 

:: purposes. Board policy now requires an investigation of the 

areaseeking creation of a water control and improvement 
Honorable R. M. Dixon, Page 3 (WW-188) 

district. Is it still the opinion of your office that none of the 

$250.00 money deposit can be used for travel and investigation 

expenses necessarily incurred in proceedings to create such a 

district?” 

The question of payment of fees to the Board of Water Engineers 

by governmental agencies has been reviewed in many prior opinions by this 

office. A brief summary of each opinion is as follows: 

1. Letter opinion dated June 30, 1925, addressed to the Game, 

Fish and Oyster Commission, decided that the Commission need not pay the 

statutory fees in order to acquire a permit to appropriate water for the 

purpose of maintaining a game preserve and fish hatchery. The basis of the 

opinion is that since game, fish, water and permit fees are all the property 

of the State, and since the fees statutes do not expressly require the Commission to pay the fees, none need be paid. 

2. Letter opinion dated January 3, 1938, addressed to the Board 

of Water Engineers decided that the Federal Farm Security Administration 

had to pay the .mandatory fees since the fees were not taxes so as to forgive 

payment thereof by the Federal Government. 

3. Letter opinion dated March 8, 1.938, addressed to the Braeos 

River Conservation and Reclamation District, holds said district exempt 

from the fees in question. This hold’ ing is based on the fact that “the entire 

enterprise is an undertaking by the State to conserve its public waters and 

to utilize same for the benefit of the State in its entirety . . . the fees are not 

required.” 

4. Letter opinion dated May 4, 1938, addressed to ,Upper Red 

River Flood Control and Irrigation District holds such district not liable for 

the fees. This opinion pointed out a,gain that the district was a State agency 

exercising powers~ and privileges in furtherance of governmental pmposes 

and in addition stated that one department of government is not required .to 

pay another department a license or privilege tax since this would be merely 

paying the revenue of the State into the revenue of the State. 

5. Letter opinion dated May 13, 1938, addressed to the Board 

of Water Engineers, overrules the opinion of May 4, 1938, and ,holds the 

Upper Red River Flood Control and Irrigation District liable for the fees. 

Earlier opinions were reviewed and the Game, Fish and Oyster Commission 

and Brazes District opinions approved. The Brazes opinion was approved 
Honorable R. M. Dixon, Page 4 (WW-188) 

on the basis that the net revenue of the Brazes District ultimately find 

their way into the General Revenue as do the fees collected by the Board 

of Water Engineers. Because the Upper Red River District’s Act did not 

contain this net revenue provision, it was held liable for the fees. 

6. Opinion No. O-78 dated January 13, 1939, addressed to the 

State Parks Board, holds such Board not liable for the fees. This opinion 

reviews all prior opinions and adopts as its basis the above indicated fee 

theory whereby such Board need not pay the statutory fees, since its revenues 

go into and come out of a State fund. 

7. Opinion No. o-4304, approved February 9, 1942, addressed 

to the Lower Colorado River Authority, holds that that Authority is not 

liable for payment of the statutory fees. The opinion was based on the inability of the Authority to spend its funds for any but a statutory purpose. 

It decided that the Authority acquires no right through such a permit, since 

its right to appropriate was conferred by its act, and that payment of the fees 

in order to secure a permit would be use of its funds for a non-statutory purpose. The earlier opinions on this subject were not discussed, even though 

neither the Upper nor Lower Colorado Acts contain a provision whereby net 

revenues go into the General Fund. 

8. Opinion No. O-7338, approved August 9, 1946. addressed to 

the Upper Colorado River Authority, reached the same result and for the 

same reason as that set forth in Opinion No. O-4304 above. 

9. Opinion No. V-803, approved A,p ril 4, 1949, addressed to 

the Board of Water Engineers, reviews all prior opinions and withdraws 

Opinion No. O-4304 and Opinion No. O-7338, which had held that the Authorities acquired no right through a permit, since their right to appropriate was 

conferred by, the Acts creating them. This opinion holds that the Colorado 

Districts are exempt from payment of the statutory fees even though no provision in the Colorado Acts provides for turning net revenues to the General 

Fund, as provided in the Bravos Act. The basis of the opinion was that the 

Colorado and Brazes Districts were created pursuant to Section 59, Article 

XVI, of the Constitution, and under no circumstances would they be authorized 

to produce a profit over and above constitutional and statutory costs, therefore, 

no distinction should be made. 

We have carefully studied the prior opinions on this subject and 

are unable to agree with the conclusions reached by them as to exemption 

from payment of statutory fees by certain governmental agencies. 
Honorable R. M. Dixon, Page 5 (WW-188) 

The fees required by Article 7532 and Article 7497 are mandatory, and like all mandatory fees, they must be collected by the Board from 

each applicant, unless such applicant is expressly exempt. NO exemption 

whatsoever is provided under Article17532 or Article 7497, and none can be 

read into the statute. No mention of exemption from payment of fees is found 

in the Legislative Acts creating the various river authorities and water 

districts, nor is authority for such an exemption found in Section 59, Article 

XVI, of the Texas Constitution. 

The Legislature can provide for an exemption as to payment 

of certain statutory fees by governmental agencies and often has enacted 

such a~ provision. An example of this is found in the Fee Enumeration 

Statute, Article 3913, which provides: 

-. . ., provided neither of said officers shall demand 

nor collect any fee from any officer of the State for copies 

of any papers, documents or records in their offices, or 

for any certificate in relation to any matter in their offices, 

when such copies are required in the performance of any 

oft the official duties of such office. . . .” 

We are of the opinion that since no such exemption was provided 

as to feesof the Board of Water Engineers, the Board must charge and collect-for the benefit of the State all of the fees provided for under Article 7532 

and Article 7497, V.C.S., irrespective of who the applicant may be, including 

river authorities and water districts created by Legislative Act or under 

statutory proceedings. We therefore withdraw Opinion No. O-78, and Opinion 

No. V-803, and the prior letter opinions and substitute instead this opinion. 

. 

With reference to your request that this office reconsider 

Attorney General’s Opinion No. S-14, dated March 2, 1953, we wish to advise 

you that it is still the opinion of this office that no part of the $250.00 deposit 

paid as required by Article 7880-21 can be used for travel and investigation 

expenses incurred in the investi,gation of an area seeking to create a water 

control and improvement district. Such expenses can only be incurred under 

authority of Article 7477(10), V.C.S., which provides: 

“The members, Chief Engineer, and other employees 

of the Board shall be entitled to receive from the State their 

necessary traveling expenses while traveling on the business 

of the Board, upon an itemized statement, sworn to by the 

party who incurred the expense, and approved by the Board.” 
. 

Honorable R. M. Dixon, Page 6 (WW-188) 

The Appropriation Bill passed by the last session of the Legislature, 

~Vernon’s Texas Session Law Service, 1957, p. 1085, provides the sum 

of $25,000;00 for each of the next two years for payment of such expenses by the Board. 

SUMMARY 

All applicants, including governmental agencies, must 

pay the statutory fees required under Article 7532 and 

Article 7497, V.C.S. The Board of Water Engineers 

may not use any of the $250.00 money deposit required 

under Article 7880-21, V.C.S., for travel and investigation expenses incurred in the investigation of an area 

seeking to create a water control and improvement 

district. 

EAC :tiw 

APPROVED: 

OPINION COMMITTEE: 

H. Grady Chandler, Chairman 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

BY 

Edward A. Caeares 

Assistant 

James N. Ludlum 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Geo. P. Blackburn