AUSTIN 11. TEXAS 

I 

11, rcr!ld by&k& L 

March 2, 1953 .~__..-.~-_------ 

Hon. H,. A. Beckwlth 

Chairman 

Board of Water Engineers 

AUS tin, Texas 

Opinion No. S-14 

Re: Disposition of deposit 

for COB ts made with the 

Board of Water Engineers 

under authority of Artlcle 7880~21, V.C.S. 

Dear Sir: 

Your opinion request asks for Interpretation 

of Article 7880-21, V.C.S., a portion of which reads as 

follows : 

II 

9 . . A petition to be filed with said 

Board must be accompanied by a money deposit 

of Two Hundred and Fifty ($250.00) Dollars to 

pay all costs which may be Incurred In such 

proceedings: After the payment of such costs 

any unexpended balance must be repaid to petltloners, or to their attorney of record, whose 

receipt therefor shall be sufficient. . q 0” 

The article further provides that when an appeal 

Is perfected from the Board’s decision, “the party appellant shall pay the actual cost of the transcript of 

the record, which shall be assessed as part of the costs 

Incurred on such appeal.” 

Your letter, after quoting said statute, reads 

as follows: 

“In processing applications for the 

creation of water control and Improvement 

districts under said statute and under Artlcle 788&3a, VACS, we would like your opinion In answer to the following questions: 
I 

Hon. H. A. Beckwith - page 2 - S-14 . .I 

“1. 

2. 

3 1 

4. 

5. 

In computing the ‘costs which 

ay be incurred In such uroceed- 

&ggl In each case wherein a petltlon is made under the above statute, 

can this Board figure In the time 

of Its employees In the handling of 

the petition, the time spent by the 

Board members and any other expenses 

of this office relative to the processing of said Individual petition? 

If so, can the money thus paid out 

of the cost deposit by the Board to 

Itself be expended by the Board as local funds, or must same be placed In 

the general revenue fund of the State 

at the conclusion of the proceeding? 

If such money constitutes local funds, 

may the present procedure of placing 

these funds In a local bank be continued, and can the Board make expenditures therefrom? 

For what specific purposes may the 

Board expend the money thus received? 

Can we compute and collect our costs 

agalns t the co8 ts deposits now on hand 

which have not been returned? 

“For many years, the Board of Water Engineers 

has returned this deposit, except for actual exL 

penses of travel and other items Incident to the 

Investigation of the district, which have been deducted and paid on sworn accounts In the same 

manner and with the same detail used In presenting claims agalns t appropriated funds. The new 

proposal has been suggee ted by one member of the 

Board,’ and your opinion Is desired as to the procedure to be followed In connection with the 

handling of the deposit.” 

In Moore v. Sheooard, 144 Tex. 537, 192 S.W.2d 559, 

561 (1946)) the following Is said concerning official fees? 

“That the fixing of official fees la a 

matter of general legislation, and Is a ‘subject’ of general legislation within the meaning of Article III, Section 35, above, cannot 
Hon. H. A. Be&with - page 3 - S-14 

be quea tioned 0 There are many such 

enactments in our statutee. These 

statutes halre been 8 trlctly construed 

against allowing a fee by impllcatlon, 

as regards both the fixing of the fee 

and the officer ent,itled thereto. 

McLennan County v. Boggess, 104 Tex. 311, 

137 S.W. 346. . . And In State v. Moore, 

57 Tex. 307 . . . Mr. .Justlce Stayton 

said: ‘It 5s not believed that any well 

considered case can be found In which a 

public officer has been permitted to collect fees unless the same are vrovided 

for. and the amount thereof declared by 

&f. f,w (Emphas Is added. ) 

To the same effect, see McCalla v. City of Rock- 

&Q=, 112 Tex. 209, 246 S .W; 654~ (1922); ,Nueces County v. 

;;;;l;$;;;.;391;;;1 297, 162 S .W.2d 687 ,‘( 1942) ; 9 Tex. Jur. 

In the second paragraph of Article 7880-21, 

V.C.S., provision Is made for a charge for a transcript 

of the record In the event of an appeal. This article 

deals with water control and Improvement districts 0 The 

general fee statute undgr which the Board of Water Engineers operates is Article 7532, V.C.S. The fee schedule 

set out In that article is self-explanatory. These artlcles are the only statutes authorizing a charge to be made 

In connection with the creation of a water control and 

improvement dls trict; and where no appeal Is taken, Artlcle 7532 alone is applicable. It makes no provision 

for a charge for time spent by Board members or employees, 

and hence none can be made. The only office expenses 

authorized to be charged agalns t the petitioners t deposit 

are those specifically Itemized In Article 7532, plus, In 

the event of an appeal, the aforesaid transcript fee. 

It follows from the above that Items of travel 

and Investigation expenses referred to In the la8 t paragraph of your letter may not be charged against the deposit. Article 7490, V.C.S., states that travel expenses 

shall be received “from the State,” and provision therefor Is made for your agency In the general appropriation 

bill for the current biennium. 

Your second and third questions are governed 

by Article 7533, V.C.S., which reads as follows: 
Hon. H. A. Beckwlth - page 4 - S-14 

“The fees and charges collected In 

accordance with the provisions of this 

chapter shall be Immediately deposited In 

the State Treasury to the credit of the 

general revenue and full and detailed 

verified monthly and annual reports of all 

such receipts, as well as of the expendltures of the said Board, shall be filed 

with the Comptroller of Public ACCOUntS.” 

It Is clear from this article that fees earned 

under Articles 7532 and 7880-21 must “be Immediately deposited in the State Treasury to the credit of the general 

revenue” and cannot be expended by the Board as local 

funds. 

Article 7880-21 provides that after payment 

of costs, the unexpended balance Is to be returned to 

petitioners or their attorney of record. Since the 

amount of the costs cannot be finally determined until 

the conclusion of the proceeding, the refund should be 

made Bt that time. If you have on hand any deposits 

made under Article 7880-21, concerning which the proceedings have been finally concluded, you should deduct 

from such deposit the earned fees, as above stated, and 

deposit same In the State Treasury to the credit of the 

general revenue, refunding the balance of the deposit 

to the petitioners or their attorney of record. 

The conclusions herein expressed deal on1 

with deposits made under the authority of Article 7 8 80-21. 

SUMMARY 

The Board of Water Engineers may 

deduct from the deposit made under 

Article 7880-21, V.C.S., only the fees 

or coats specifically Itemized In Artlcle 7532, V.C.S., and the transcript fee 

provided In Article 7880-21 In the event 

of an appeal. These fees or coats when 

. . . , 
Hon. H. A. Beckwith - page 5 -~S-14 

earned cannot be expende,d by the 

Board as local funds, but they must be 

deposited Immediately in the State 

Treasury to the credit of the general 

revenue . At the conclusion of the 

proceedings, the balance of ‘the deposit 

should be refunded to the petitioners 

or their attorney of rec,ord. 

APPROVED : 

Jesse P. Luton, Jr. 

Land Dlvls Ion 

Wlllla 0. Oresham 

Reviewer 

Robert S. Trottl 

First Assistant 

John Ben Shepperd 

Attorney .General 

Yours very truly, 

JOHN BEN SHEF’PERD 

Attorney General 

BY - 8 

c 

lJ5Lzzd& 

J. Arthur Sandlln 

Assistant 

JAS:bt