THE A~~o~~NEY GENERAL 

OF TEXAS 

Aus- ~~.TEx.As 

June 27, 1962 

Honora.ble Joe D. Carter 

Chairma.n, Texas Wa.ter 

Commission 

Austin, Texa.s 

Dear Mr. Carter: 

Opinion No. ~~-1367 

Re: Whether the Texa.s Water 

Commission is required 

to pay the costs of publication of notice of 

hearing. 

We quote the following from your letter requesting 

an opinion: 

“On March 20, 1962, a. petition wa.s received 

for the creation of a water control and improvement 

district under Article 7880-3. The petition was 

accompanied by a $25.00 filing fee a.s required by 

Article 7532 and a $250.00 deposit as required by 

Article 7880-21. The Commission entered an order 

on April 10, 1962, setting the petition for hearing 

on June 5, 1962 and in accordance with usual procedure, a copy of the notlce of hearing was forwarded to the petitioners so that they could have 

the notice published as required by State law. 

Heretofore, the proposed district has borne the 

expense of publication; however, the petitioners 

in this instance have forwarded the notice of publication statement to the Commission for payment. 

“It is the petitioners’ contention that the 

Sta.te should pay the cost of publication of the 

notice of hearing in the creation of the water control and improvement district out of the $250.00 

deposit. Under the 1929 amendment of Article 7880-21 

the State was ‘to pay all costs which may be incurred 

in such proceedings’ out of the $250.00 deposit and 

return the unused balance to the petitioners. Since 

the 1929 amendment required the State to use this 

deposit to pay the costs incurred in the crea.tion, 

the petitioners contend that the phrase ‘for the 

use of the State as provided for other fees collected 

under this act’ In then 1961 amendment of Article 

7880-21 actually did not change the meaning of the 

1929 amendment. . . e ” 
Honorable Joe D. Carter, page 2 (WW-1367) 

You propound the following questions: 

“(1) Is the Texas Wa.ter Commission required 

to pa.y costs of publication of notice of hearing or 

is this an expense to be borne by the petitioners? 

“(2) If the expense of publication is to be 

oaid by the Texa.s Wa.ter Commission, should it be 

paid out of the $250.00 deposit 

7880-21?” 

The cost of publication is 

7532, V.C.S., since it provides that 

is “for the benefit of the State.” 

made under Article 

not included in Article 

the filing fee of $25.00 

Prior to the amendment of 1961, Article 7880-21, 

V.C.S., required a deposit of $250.00 “to pay all costs which 

may be incurred in such proceeding” and provided that a.fter 

the payment of such costs any unexpended bala.nce should be 

repaid to petitioners. 

By the amendment of 1961 (Acts, 57th Leg., Chap. 460, 

Sec. 1, P. 10&O), Article 7880-21 was amended and the pertinent 

part reads as follows: 

11 

. . . A petition to be filed with said Board 

must be a.ccompanied by a. deposit of Two Hundred 

and Fifty ($250.00) Dollars for the use of the 

state, as provided for other fees collected under 

this Act; no pa.rt of which shall be returned, except as hereinafter provided. The deposit shall 

be deposited in the hands of the State Treasurer 

to be held in trust outside the State Treasury 

until the Board does either grant or refuse such 

petition, at which time the Board shall direct the 

State Treasurer to transfer said deposit into the 

General Revenue Fund; provided, if at any time 

prior to the hearing, as hereinafter provided, the 

petitioners desire to withdraw said petition, then 

and only in that event, the Board &ail direct the 

refund of said deposit to petitioners, or their 

attorney of record, whose receipt therefor shall 

be sufficient. . . .” 

We see that under the 1961 amendment instead of 

providing that the deposit of $250.00 is to be used to pay 

all costs as previously provided, it is now to be used for 

the use of the State and it is specifically provided that 

no part of same shall be returned unless prior to the hearing the petition is withdrawn. The amendment also provides 

that the amount of said deposit shall be deposited in the 
Honorable Joe D. Carter, pa.ge 3 (~~-1367) 

hands of the State Treasurer in trust until the Board either 

grants or refuses the petition. This provision is for the 

purpose of keeping the money out of the State Treasury until 

it is seen whether the petition will be withdrawn in order 

that it may be returned if the petition is withdrawn before 

the hearing. If it should be placed in the Treasury it could 

not be withdrawn except by an appropriation of the Legislature. 

(Article 8, Sec. 6 of the Texas Constitution) 

It is noticed that there is no provision made for 

the use of the money except for two purposes: (1) return it 

if the petition is withdrawn prior to the hearing or (2) deposit it in the State Treasury if the Board grants or refuses 

the petition. 

Since the Act makes no provision for the payment of 

the costs of publication of the notice and makes only the two 

provisions as set out above for disposition of the deposit, it 

naturally follows that it cannot be used to pay the costs of 

publication. Therefore, in answer to your first question you 

are advised that the Texas Water Commission is not required to 

pay the costs of publication of a notice of hearing and that 

this is a cost to be borne by the petitioners. This ma.kes an 

answer to your second question unnecessary. 

SUMMARY 

The Texas Water Commission is not required 

to pay costs of publication of a notice of hearing of a petition to create a water control and 

improvement district created under Article 7880-3, 

V.C.S. 

Yours very truly, 

WILL WILSON 

HGC:dsd 

Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Frank Booth 

Charles Lind 

Woodrow Curtis 

Robert Lewis 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Leonard Passmore