## QPffict oftbtBttotnepfIberal 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 !j52.166,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 withwellpermitting 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 Countyv.Currhgton, 162S.W.Zd687 (Tex. 1942):McCallav.CityofRockdale, 246SW. 654 (Tex. Comm’nApp. 1922,opinion adopted).

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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. PnxfucersA&n ofSanAntonio v. Cz?y ofSan Antonio, 326 S.W.2d 222 (Tex Civ. App.-San Antonio 1959, writ refd n.r.e.); Doeppemchmidt v. C@ ofNew BmunfeLr,289 S.W. 425 (Tex. Civ. App.-Austin 1926, writ ref d). Bu&cear As.rc&tion ofSanAntonio 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;LowerColorado RkrAuth v. CityofSanMaws, 523 S.W.2d641 (Ten. 1975). The Fmducers Astociationof SanAnto& 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 citythe power to impose the fee. 289 S.W.at 427.1 We believe that a court today, ifpresented 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 Moorev. Sheppard,Nueces Co~nlyv. Ctmington,and M&alla v. Cityof 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 feeortax.’ 289S.W. at427. Thatstatement wasnotncaaary totheholding ioDocppmKhmidfand must,wethi&hecoasidoradasd&ta

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fees at issue.2 Because we conclude that section 52151 does not provide authority to impose the fees in question, weneed 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 ofTexas WILLPRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney General JuDGEzoLLlE STEAKLEY (Ret.) Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byWii Walker Assistant Attorney General

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