AUSTIN 11. TEXAS I11, 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 madewith the Board of Water Engineers under authority of Artlcle 7880~21, V.C.S. Dear Sir: Your opinion request asks for Interpretation ofArticle 7880-21, V.C.S., aportion of which reads as follows :

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. . Apetition to be filed with said Board must be accompanied by amoney deposit of TwoHundred and Fifty ($250.00) Dollars to pay all costs which maybe Incurred In such proceedings: After the payment of such costs any unexpended balance must berepaid to petltloners, or to their attorney of record, whose receipt therefor shall be sufficient.

. q0” 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 onsuch 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,wewould like your opinion In answer to the following questions:I

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

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“1.

2.

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4.

5. In computing the ‘costs which ay be incurred In such uroceed- &ggl In each case wherein apetltlon 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 alocal bank be continued, and can the Board make expenditures therefrom? For what specific purposes maythe Board expend the money thus received? Canwecompute and collect our costs agalns t the co8ts deposits nowonhand 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 onsworn accounts In the same manner andwith 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. 537,192S.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, cannotHon. H.A. Be&with - page 3-S-14

be queationed 0 There are many such enactments in our statutee. These statutes halre been 8trlctly construed against allowing afee by impllcatlon, as regards both the fixing of the fee and the officer ent,itled thereto. McLennan County v. Boggess, 104 Tex. 311, 137S.W. 346.

. .AndIn State v. Moore, 57Tex. 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 (EmphasIs added. ) Tothe same effect, see McCalla v. City of Rock- &Q=, 112Tex. 209, 246S.W;654~(1922); ,Nueces County v. ;;;;l;$;;;.;391;;;1 297, 162 S.W.2d 687,‘(1942);9Tex.Jur.

In the second paragraph of Article 7880-21, V.C.S., provision Is made for acharge for atranscript 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 acharge to bemade In connection with the creation of awater control and improvement dlstrict; and where no appeal Is taken, Artlcle 7532 alone is applicable. It makes noprovision for acharge for time spent byBoard members or employees, and hence none can bemade. The only office expenses authorized to be charged agalns t the petitioners tdeposit 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 Inthe la8tparagraph of your letter maynot be charged against the deposit. Article 7490, V.C.S., states that travel expenses shall bereceived “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 7880-21must “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 7880-21provides 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 onhand 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 780-21. 8

SUMMARY
TheBoard ofWater 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 7880-21In 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 ‘thedeposit 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 BenShepperd Attorney .General Yours very truly, JOHNBENSHEF’PERD Attorney General

BY - 8 c lJ5Lzzd& J. Arthur Sandlln

Assistant

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