QPffict of tbt Bttotnep fIberal 

Mate of Qtxas 

May 3,199l 

Mr. Allen Beinke 

Bxecutive Director 

Texas Water Commission 

P. 0. Box 13087, Capitol Station 

Austin, Texas 78711-3087 

Opinion No. DM-22 

Re: Authority of an underground water 

conservation district to assess anuual permit and registration fees (RQ-2193) 

Dear Mr. Beinke: 

An underground water ,conservation district operating under chapter 52 of the 

Water Code must require permits for the drilling and equipping of certain water wells 

within the district. Water Code !j 52.166, et seq. Section 52.170 exempts various kinds of 

wells from the permitting requirement; however, subsection (g) of that section requires 

such exempt wells to be registered with the district and to conform to certain district rules. 

You ask whether, under the rule-making powers provided for in section 52.151, such 

districts have authority to impose fees for well permitting or registration. Section 52.151 

provides: 

A district may make and enforce rules to provide for conserving, 

presetving, protecting, recharging, controlling sub-sidence, and 

preventing waste of the underground water of an underground water 

reservoir or its subdivisions and to carry out the powers and duties 

provided by this chapter. 

Neither chapter 52 nor any other provisions of general law applicable to 

underground water conservation districts specifically provide for a district’s imposition of a 

fee in connection with well permitting or registration. Prior attorney general opinions have 

consistently ruled that public entities, other than home-rule cities, may not charge a fee 

unless it is specifically provided for by law, and that fees are not permitted by implication. 

See, e.g., Attorney General Opinions JM-441 (1986); JM-346, JM-345 (1985); MW-5 

(1979); H-647 (1975). Accord Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946); Nueces 

County v. Currhgton, 162 S.W.Zd 687 (Tex. 1942): McCalla v. City of Rockdale, 246 SW. 654 

(Tex. Comm’n App. 1922, opinion adopted). 

p. 100 
lvf.r.AllenBeinke-Page 2 0x-22) 

A brief submitted in connection with your request cites two Texas appellate court 

cases for the proposition that the power to regulate an activity includes the power to 

impose a fee to cover the cost of regulation. Pnxfucers A&n of San Antonio v. Cz?y of San 

Antonio, 326 S.W.2d 222 (Tex Civ. App.-San Antonio 1959, writ refd n.r.e.); 

Doeppemchmidt v. C@ of New BmunfeLr, 289 S.W. 425 (Tex. Civ. App.-Austin 1926, writ 

ref d). Bu&cear As.rc&tion of San Antonio dealt with the authority of a home-rule city to 

impose a fee by ordinance and, as such, is distinguishable from the situation addressed in 

your request. While water districts and other political subdivisions of the state have only 

such powers as are provided by the constitution and statutes, T&City Fmh W&r Supp& 

Dirt. No. 2 of Hanis Cot&y v. Mann, 142 S.W.2d 945 (Ten. 1940). home-rule cities may, 

under duly adopted city charter provisions and ordinances, exercise any powers not 

inconsistent with the general laws or constitutior~ Ten. Const. art. XI, 8 5; Lower Colorado 

RkrAuth v. City of San Maws, 523 S.W.2d 641 (Ten. 1975). The Fmducers Astociation of 

San Anto& court specifically found that the home-rule city at issue had authority under its 

ordinance, adopted pursuant to article XI, section 5, to impose a particular fee. 326 S.W. 

2d at 225. 

The heppen@midt opinion dealt with a license fee a city had attempted to impose 

on motor vehicles used for hire; it did not indicate whether the city in question was homerule. Doeppemchnddt struck down the fee there because it found that applicable state law 

specifically denied the city the power to impose the fee. 289 S.W. at 427.1 

We believe that a court today, if presented with the issue whether an underground 

water conservation district has the implied power under section 52.151 to impose a fee for 

permitting or registering wells, would follow the rule recognized by the Supreme Court in 

Moore v. Sheppard, Nueces Co~nly v. Ctmington, and M&alla v. City of Rock&ale, supm -- 

that fees must be specifically provided for by law and are not permitted by implication - 

and would accordingly hold that such districts are not thereby authorized to impose the 

%e~didmakcthcbroadstatement that’thepoxrtoliccnacincluduthcpowcrtocxactr 

liceme fee or tax.’ 289 S.W. at 427. That statement was not ncaaary to the holding io DocppmKhmidf and 

must,wethi&hecoasidoradasd&ta 

p. 101 
Mr.AllenBcinke-Page 3 0X-22) 

fees at issue.2 Because we conclude that section 52151 does not provide authority to 

impose the fees in question, we need not address your other questions. 

Section 52.151 of the Water code does not provide authority for 

underground water conservation districts to impose a fee in connection 

with permitting or registering wells. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

First Assistant Attorney General 

MARY KELLER 

Executive Assistant Attorney General 

JuDGEzoLLlE STEAKLEY (Ret.) 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Wii Walker 

Assistant Attorney General 

p. 102