April 18, 1967

Hon. Frank Booth Opinion NO. M-60 ExecutiveDirector Texas Water Rights Commission Re: Whether, under the Sam Houston State Office Bldg. stated facts, the five Austin, Texas

Dear Mr. Booth:
You the five have requested

. . year provision Statutes, is applicable year provision of Art. 7519a,V.C.S., precludes entry'of an order cancelISngpermit No. 313.

an opinion from this office on whether of Article 7519a,, Vernon's Civil in the following fact situation: A portion of PermitNo. 313was voluntarily relinquished by its joint owners L. D. and Arthur Singleywho executed separate affidavits in 1962 in which they stated that a portion of the permit has been abandoned and that theywaived notice and public hearing and requested that the Commission cancel the abandonedportion of the permit, On January 7, 1963, pursuant to the above request of permittees, the Commissionentered an order cancelling the abandonedportion of Permit No. 313; the permitteeswere then leftwith the right to divert and use 160 acre-feet of water from the Clear Fork of the Brazes for the irrigation of 80 acres of land in Fisher County, Texas.
On October 10, 1966, when Commission records showed that there had been nowater use under Permit No. 313 formore than ten years, an orderwas enteredpursuant to Article 7519a, Vernon’s Civil Statutes, setting the permit for public hearing on the matter of involuntary total cancellation.

On January 24, 1967, after due noticehad been given pursuant to law, thematter of cancellingPermit No. 313 regularly came before the Commission on its docket. No appearancewas made by the permittees. The questionwas raised whether the five year proscription of Article 7'jlqa, Vernon's Civil Statutes, was applicable:

- 283 -Hon. Frank Booth, Page 2, (M-60)

,I 0 0 a once cancellationoroceedinnshave been initiated against a'parti&lar per&t or

d filing and a hearing hasp been held certifie

ainst suchpertilt or'certified filing for a ieriod of not less than five '(5) sears thereon, the Board shall not initi inRs ate proceedafter the date of suchpublic hearing:"- (Emphasisadded)
There was no public hearing in 1963 when a portion of Permit No. 313was cancelledat the request of the permittees for cancellationwithoutpublic Therefore,' the 'five year proscription 'inArticle '(219 Vernon's Civil'Statutes, would not act as a bar to total c%ellation on January 24; 1967. Attorney General's Opinion No. WW 1037 clearly distinguishes betweenvoluntary waiver or relinquishmentof water rights under CommissionRule 615.1 and involuntaryproceedings institutedpursuant to Article 751 a, Vernon's Civil Statutes. Further, byArticle 7477, Section (b),and Artidle 7544, 3 Vernon's Civil Statutes, the Commissionhas the added authority to cancelwater rights which have been abandoned for three consecutiveyears; such an action clearlywould not fall'within the purview of the five year prohibition of Article 7519a, Vernon's Civil Statutes.

SUMMARY ------- Under the stated facts, the Texas Water Rights Commission is not barred by the fiveyear provision of Article 7519a from cancellingPermit NO. 313 in 1967 because of voluntarypartial cancellation of the permit in 1963.
Vef3 truly yours,

Prepared by Roger Tyler Assistant Attorney General
APPROVED: OPINION COMMITTEE Hawthorne Phillips Chairman W. V. Geppert, Co-thairman Sam Kelle Houghton rownlee

5 Vince Taylor Pat Bailey
STAFF LEGAL ASSISTANT A. J. Carubbi, Jr.

_284 -