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.sWater Commission is required to pay the costs of publication of notice of hearing.

Wequote the following from your letter requesting anopinion:

“OnMarch 20, 1962, a.petition wa.sreceived for the creation of awater control and improvement district under Article 7880-3. Thepetition was accompanied by a $25.00 filing fee a.srequired by Article 7532 and a $250.00 deposit as required by Article 7880-21. TheCommission entered anorder onApril 10, 1962, setting the petition for hearing onJune 5, 1962 and in accordance with usual procedure, acopy of the notlce of hearing wasforwarded 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 amendmentof Article 7880-21 the State was ‘to pay all costs which maybe 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 then1961 amendment of Article 7880-21actually did not change the meaning of the 1929 amendment.

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

Youpropound the following questions:

“(1) Is the Texas Wa.terCommission required to pa.ycosts 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.sWa.terCommission, should it be paid out of the $250.00 deposit 7880-21?”
Thecost of publication is 7532, V.C.S., since it provides that is “for the benefit of the State.” madeunder Article

not included in Article the filing fee of $25.00

Prior to the amendment of 1961, Article 7880-21, V.C.S., required adeposit of $250.00 “to pay all costs which maybe incurred in such proceeding” andprovided that a.fter the payment of such costs anyunexpended bala.nce should be repaid to petitioners.

Bythe amendment of 1961 (Acts, 57th Leg., Chap. 460, Sec. 1, P. 10&O), Article 7880-21was amended and the pertinent part reads as follows:

11

. . .Apetition to be filed with said Board must be a.ccompanied by a.deposit of TwoHundred and Fifty ($250.00) Dollars for the use of the state, as provided for other fees collected under this Act; nopa.rt of which shall be returned, except as hereinafter provided. Thedeposit 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 andonly 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.

. . .”
Wesee 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 nowto be used for the use of the State and it is specifically provided that nopart of sameshall be returned unless prior to the hearing the petition is withdrawn. Theamendmentalso provides that the amount of said deposit shall be deposited in theHonorable 

### JoeD.Carter,pa.ge3 (~~-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 bewithdrawn in order that it maybe returned if the petition is withdrawn before the hearing. If it should be placed in the Treasury it could not be withdrawn except by anappropriation of the Legislature. (Article 

### 8,Sec. 

### 6of the Texas Constitution)

It is noticed that there is noprovision madefor the use of the money except for twopurposes: (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 noprovision for the payment of the costs of publication of the notice andmakes 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 anotice of hearing and that this is acost to be borne by the petitioners. This ma.kesan answer to your second question unnecessary.

SUMMARY
TheTexas Water Commission is not required to pay costs of publication of anotice of hearing of apetition to create awater control and improvement district created under Article 

### 7880-3, V.C.S. Yours very truly,
WILLWILSON

HGC:dsd 

### Assistant APPROVED: OPINION

### COMMITTEE W.V. Geppert, Chairman Frank Booth Charles Lind Woodrow Curtis Robert Lewis REVIEWED

FORTHEATTORNEY GENERAL BY: Leonard Passmore