Honorable R. M. Dixon, Chairman

Board ofWater 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 atgreat length the fees that need not be paid tothe Board ofWater 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 ofthe **Depart** mentand overruled two ofthem, holding ineffect, as we interpret it,,that Districts established pursuant toSection 59. Article XVI ofthe Constitution are created to accomplish apubltc 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 andwill be created by the Legislature. Inaddition, water control and improvement districts and other types ofwater districts are being andwill be created by this Board, by **County** Commissioners’ **Couits,** and, in rare instances,.by the governing bodies ofmunicipal corporations (Article 7880-135, V.C.S.). Such districts derive,thetr constitutional authority from either Section 52 ofArticle III or Section 59 ofArticle 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 andHonorable R. M. Dixon, Page 2 (WW-188)
7497, respectively, require shall be accompanied by certain specified fees. Quite **naturally,** the representatives ofthese agencies raise the question oftheir liability for payment of statutory fees. “Based uponthe foregoing, your opinion is respectfully requested as tothe following:

“1. Are all river authorities and the various types of water districts created **by** the Legislature exempt from the payment ofall statutory fees required to

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

Ifnot, please list those which are not exempt.

“2; **Are** water districts created by lawful means other than by the Legislature exempt from the payment ofall statutory fees required tobe collected by this Board for the benefit ofthe State?

‘3. Are municipal corporations, when acting inthe publit interest to develop awater supply, exempt from the payment ofall statutory fees required to be colalected bythis Board for the benefit of the State? U4. **Are** other political subdivisions ofthe 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 ofthe water resources ofthe State for public **purposes,** exempt from the pay**ment** ofall **statutory** fees required to be collected by this Board for the benefit of the State 1

.“In view ofthe fact that briefing the above-raised issues will require a complete study ofthe question of fees collected by this Board, we also request a re-analysis ofAttorney General’s Opinion No. S-14, dated March 2, 1953, inwhich 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 ofthe areaseeking creation ofawater control and improvementHonorable R. M. Dixon, Page 3 (WW-188)

district. Is it still the opinion of**your** office that none ofthe $250.00 **money** deposit can beused for travel and investigation expenses necessarily incurred inproceedings to create such a district?” The question ofpayment offees to the Board ofWater Engineers by governmental agencies has been reviewed inmany prior opinions bythis office. A brief summary ofeach 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 toacquire apermit to appropriate water for the purpose ofmaintaining agame preserve and fish hatchery. The basis ofthe opinion is that since game, fish, water and permit fees are all the property ofthe 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 ofWater Engineers decided that the Federal Farm Security Administration had topay 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 inquestion. This hold’ing is based onthe fact that “the entire enterprise is an undertaking by the State to conserve its public waters and to utilize same for the benefit ofthe State inits entirety
. . .the fees are not required.” 4. Letter opinion dated May 4, 1938, addressed to ,Upper Red River Flood Control andIrrigation District holds such district not liable for the fees. This opinion pointed out a,gain that the district was aState agency exercising powers~ and privileges infurtherance ofgovernmental pmposes and inaddition stated that one department of government is not required .to pay another department alicense or privilege tax since this would be merely paying the **revenue** ofthe State into the revenue ofthe State.

5. Letter opinion dated May 13, 1938, addressed tothe Board ofWater Engineers, overrules the opinion ofMay 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 approvedHonorable R. M. Dixon, Page 4 (WW-188)

onthe basis that the net revenue ofthe Brazes District ultimately find their way into the General Revenue as do the fees collected by the Board ofWater Engineers. Because the Upper Red River District’s **Act** did not contain this net revenue provision, itwas 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 ofaState 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 ofthe statutory fees. The opinion was based onthe inability oftheAuthority to spend its funds for **any but**  **a statutory**  **purpose.** Itdecided that theAuthority acquires no right through such apermit, since its right to appropriate was conferred by its act, and that payment ofthe fees in order to secure apermit would be use ofits funds for anon-statutory purpose. The earlier opinions onthis subject were not discussed, even though neither the Upper nor Lower Colorado Acts contain aprovision 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 inOpinion No. O-4304 above.

9. Opinion No. V-803, approved A,pril 4, 1949, addressed to the Board ofWater Engineers, reviews all prior opinions andwithdraws Opinion No. O-4304 and Opinion No. O-7338, which had held that the Authorities acquired no right through apermit, 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 inthe Colorado Acts provides for turning net **revenues** to the General Fund, as provided inthe Bravos Act. The basis ofthe opinion was that the Colorado and Brazes Districts were created pursuant to Section 59, Article XVI, ofthe Constitution, and under no circumstances would they be authorized to produce aprofit 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 byArticle 7532 andArticle 7497 are mandatory, and like all mandatory fees, they must be collected by the Board from each applicant, unless such applicant is expressly exempt. NOexemption whatsoever is provided under Article17532 or Article 7497, and none can be read into the statute. No mention ofexemption from payment of fees is found inthe Legislative Acts creating the various river authorities andwater districts, nor is authority for such an exemption found inSection 59, Article XVI, ofthe Texas Constitution.

The Legislature can provide for an exemption as to payment ofcertain statutory fees by governmental agencies and often has enacted such a~provision. An example ofthis is found inthe Fee Enumeration Statute, Article 3913, which provides:

-. . ., provided neither ofsaid officers shall demand nor collect any fee from any officer ofthe State for copies ofany papers, documents or records intheir offices, or for any certificate in relation to any matter intheir offices, when such copies are required inthe performance ofany oftthe official duties ofsuch office.
. . .” We are ofthe opinion that since no such exemption was provided as to feesof the Board ofWater Engineers, the Board must charge and collect-for the benefit ofthe State all ofthe fees provided for under Article 7532 andArticle 7497, V.C.S., irrespective ofwho the applicant may be, including river authorities andwater 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, wewish toadvise you that it is still the opinion ofthis office that nopart ofthe $250.00 deposit paid as required byArticle 7880-21 can be used for travel and investigation expenses incurred inthe investi,gation ofan area seeking to create awater control and improvement district. Such expenses can only be incurred under authority ofArticle 7477(10), V.C.S., which provides:

“The members, Chief Engineer, and other employees ofthe Board shall be entitled to receive from the State their necessary traveling expenses while traveling on the business ofthe 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 ofthe Legislature, ~Vernon’s Texas Session Law Service, 1957, p. 1085, provides the sum of $25,000;00 for each ofthe **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 ofWater Engineers may not use any ofthe $250.00 money deposit required under Article 7880-21, V.C.S., for travel and investigation expenses incurred inthe investigation ofan area seeking to create awater 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