April 18, 1967 

Hon. Frank Booth Opinion NO. M- 60 

Executive Director 

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 cancelISng permit No. 313. 

an opinion from this office on whether 

of Article 7519a,, Vernon's Civil 

in the following fact situation: A 

portion of PermitNo. 313 was voluntarily relinquished by its 

joint owners L. D. and Arthur Singley who executed separate 

affidavits in 1962 in which they stated that a portion of 

the permit has been abandoned and that they waived notice and 

public hearing and requested that the Commission cancel the 

abandoned portion of the permit, On January 7, 1963, pursuant 

to the above request of permittees, the Commission entered an 

order cancelling the abandoned portion of Permit No. 313; the 

permittees were then left with 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 no water use under Permit No. 313 for more than 

ten years, an order was entered pursuant 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 notice had been given pursuant to law, the matter of cancelling Permit No. 313 regularly 

came before the Commission on its docket. No appearance was 

made by the permittees. The question was 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 cancellation oroceedinns have 

been initiated against a'parti&lar per&t or 

certifie d filing and a hearing hasp been held 

ainst such pertilt 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 such public hearing:"- 

(Emphasis added) 

There was no public hearing in 1963 when a portion of 

Permit No. 313 was cancelled at the request of the permittees 

for cancellation withoutpublic Therefore,' the 'five 

year proscription 'in Article '(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 between voluntary waiver or relinquishment of water 

rights under Commission Rule 615.1 and involuntary proceedings 

instituted pursuant to Article 751 a, Vernon's Civil Statutes. 

Further, by Article 7477, Section 3 (b), and Artidle 7544, 

Vernon's Civil Statutes, the Commission has the added authority 

to cancel water rights which have been abandoned for three 

consecutive years; such an action clearly would 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 

five year provision of Article 7519a 

from cancelling Permit NO. 313 in 1967 

because of voluntary partial 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 5 rownlee 

Vince Taylor 

Pat Bailey 

STAFF LEGAL ASSISTANT 

A. J. Carubbi, Jr. _ 284 -