THEA'ITORNEYGENERAL 

OF 7rExAs 

WI& WI&SON 

*‘croRNEY GENERAI. 

April lo, 1961 

Mr. Durwood Manford, Chairman Opinion No. WW-1037 

State Board of Water Engineers 

P. 0. BOX 2311 Re: Under the submitted facts 

Austin 11, Texas and assuming that all proceedings in promulgating 

the Rules, Regulations 

and Modes ofiprocedure 

of the Board of Water 

Engineers in 1953 and in 

the 1955 revision were 

in due and proper form, 

whether Board Rule 615.1 

was valid when first 

adopted and when re-promulgated in 1955, and 

Dear Mr. Manford: related questions. 

In your request for an official opinion from this office 

you relate the following facts in connection with your request: 

On June 19, 1957, the Board of Water Engineers issued 

Permit No. 1880 to the Wichita County Water Control and Improvement District No. 1 which authorized the construction of a 

reservoir at what is known as the Ringgold Site on the Little 

Wichita River in Clay County, Texas. The time for the construction works allowed by the Permit was extended on two occasions, 

the last extension being granted until April 10, 1961, in which 

to commence construction of the reservoir. 

Your letter relates that the City of Wichita Falls submitted an application to the Board for a permit to construct a 

dam and reservoir on the Little Wichita River in Clay County, 

Texas, at what is known as the Halsell Site, approximately 35 

miles upstream from the Ringgold Site, this application being 

submitted on October 5, 1960, such application being for the 

purpose of appropriating public waters from such reservoir for 

municipal purposes. You state that the application on the 

Halsell Site has not been accepted for filing and set for hearing 

by the Board primarily because hydrologic studies indicate that 

there is no unappropriated water available in the source of supply 

by virtue of the fact that the appropriation authorized by Permit 

No. 1880 is based upon the development of most of the dependable 
yield of the Little Vichita River. 

You also relate tha.t at a bond election in the District 

on December 6, 1958, the voters disapproved the issuance of 

dLstrict bonds to finance the project at the Ringgold Site, 

and that more recently the voters of the City of Wichita Pa,lls 

approved the issuance of city bonds to finance the construction 

of a, reservoir on the Little ~Wic’hita. River a.nd tha.t the city 

elected to proceed with the application on the Halsell Site. 

Your letter further states that after a discussion had 

::lith representatives of both the city and the district the..t 

th,- Board received an instrument executed by the district purporting to wa.ive all the district’s rights under Permit No. j-889 

with the request that the Board cancei the Permit without a 

hea.ring. 

Your principal question is whether the Boa,rd ma.y proceed 

under Board Rule 615.1, a procedure whic’h authorizes ca.ncella.tion 

of a.. permit to appropriate water without notice of t,eari.ng a,nd 

‘hearing thereon w’here the holder of the permit tenders the same 

voiunkrily for ca,ncellation with a. writteil wa.iver. 

For the purpose of showing E?card Rule 615.1 in context, 

we quote here all subsections under the heading numbered 615. 

“CANCELLATION OF PXRMITS AND CXRTIFIED FILINGS 

“615.1 CANCELLATION WITH CONSEIU“T: Upon being 

a.dvised that the holder of a permit or certified 

filing no I.onger desires to a,bpropriate water, 

the Board sends a written waiver to the owner 

of the wa.ter right a.nd the owners of the land, 

if different ownerships a.re involved. If t~he 

permit or certified filing is held by a political subdivision, such waiver will be mailed 

to its governing body. 

(a) Documents Needed to Pile: Written waiver 

consenting to the cancellation. 

(b) Fees : None. 

(cl Notice and Hearing: No t-l e . 

(d) Action of the Zoard: An order ca.nceiing 

the ,permit or filing in whole or in part is 

-nt-recl. a.nd mailed to tile county cleric for recording, with t3e request to i:eturn same for 

fiii~ng. 
I.:-. D.m~ood. I,'ianford, Pa.ge 3 (Wd-1037) 

“615.2 CANCELLATION WITHOUT CONSENT: Under 

Article 7474, the Board is given administrative 

power to find facts which will effect a legal 

forfeiture of a water permit or certified filing, 

or a portion thereof, where no water has been 

used, where the work required in a permit or 

certified filing has not been begun OP pursued 

with reasonable diligence, and where there is 

no beneficial use of water. 

(a) Documents Needed to File: None. This 

proceeding is initiated by the Board, 

(b) Fees: None. 

(c) Notice and Hearing: Under Articles 74.74 

and 7519, actual notice must be given not only 

to the record owner of the water right but also 

the owner of the land, where different ownerships 

are involved, notice will be given its agent for 

service of citation. Such notice will be given 

30 days before the hearZng is to be held, and a 

public hearing is required at which the holder 

of the permit or certified filing may appear or 

he may file a written statement resisting the 

cancellation. 

(d) Action of the Board: The Board enters a 

resolution or order either declaring the facts 

and canceling the water right, or the Board resolves that it refuses to cancel same. 

"615.3 CANCELLATION UNDER ARTICLE 7519a: 

Article 7519a effects the cancellation of all 

permits unused for a period of ten consecutive 

years prior to January 1, 1955. The law requires 

the Board to follow cancellation procedures. 

(a) Documents Needed to File: None. The Board 

initiates the proceeding. 

(b) Fees: None. 

(c) Notice and Hearing: A hearing date Is set 

by the Board and notice thereof is sent by registered mail, return receipt requested, to the 

permit holder at the last address shown by the 

records of the Board at least 90 days prior to 

the effective date of such cancellation hearing. 
Mr. Durwood Manford, Page & (ww-1037) 

(d) Action of the Board: If the facts 

disclose that no water authorized to be 

withdrawn has been beneficially used for 

a period of ten consecutive years, the 

Board orders that the permit be cancelled.” 

Board Rule 615.1 was promulgated pursuant to the Board’s 

general rule-making power which is provided for in Article 7531, 

Vernon’s Civil Statutes. Article 7531 provides in part as 

follows: 

“The Board of Water Engineers shall adopt 

rules and regulations, including modes of 

procedure, for the performance of the duties, 

powers, and functions prescribed and vested 

in it by this Chapter, and for the enforcement of its provisions, and shall have a seal, 

the form of which it shall prescribe. All 

such rules and regulations made for the administration and enforcement of the provisions 

of this Chapter, and that are reasonable and 

not in conflict herewith, shall be binding 

uoon all oersons affected bs such orovisions. 

The rules-and regulations shall be-sprinted, 

and copies shall be furnished to all interested 

persons upon application therefor, provided, 

that the Board, may at its discretion, make a 

reasonable charge therefor. After the rules 

and regulations shall have been adopted and 

printed, no amendment of an existing rule or 

no new rule shall be made effective until at 

least thirty (30) days after copy of same shall 

have been published one time in a newspaper of 

general circulation in each of the three Water 

Divisions described in Article 7475 of the 

Revised Civil Statutes of Texas, 1925.“.... 

(Eknphasis supplied) 

For the purpose of answering your request, we assume 

that Board Rule 615.1 was published as required by Article 7531, 

and was validly promulgated. The foregoing provision conditions 

the Doard’s rule-making power as follows: (1) All such rules 

and regulations must be made for the administration and the 

enforcement of Chapter 1 of Title 128 of the Revised Civil 

Statutes of Texas of 1925, as amended. (2) Such rules and regulations must be reasonable. (3) Such rules and regulations 

must not be in conflict with existing statutes. 

One of the duties of the Board under Chapter 1 of Title 

128 is set forth in Article 7472d.of Vernon’s Civil Statutes as 
Mr. Durwood Manford. Page 5 (WW-1037) 

follows: 

“It shall be the purpose and policy of the 

State and of the enactments in accord therewith, in effecting the greatest beneficial 

utilization of waters of the State, to cause 

to be made all surveys essential to disclose 

the measure and potential availability of the 

water resources of the State to uses recognized; and to ascertain from necessary investigation the character of the principal requirements of the distinct regional division 

of the watershed areas of the State for the 

uses herein authorized, to the end that distribution of the right to take and use the 

waters of the State may be the more equitably 

administered in the public interest, and privileges granted for the uses recognized may be 

economically co-ordinated, achieving the maximum of public value from this resource; and 

recognizing alike the distinct regional necessities for water control and conservation, 

and for control of harmful floods.” 

The Board is likewise under a duty to deny an application 

for a permit to appropriate public waters if the Board finds 

that there is no unappropriated water in the source of supply, 

if the proposed use will impair existing water rights, or if the 

granting of the permit is detrimental to the public welfare. 

Art. 7506, V.C.S. 

It would seem clear then that Board Rule 615.1 clearly 

meets the first two tests layed down in Article 7531, ie., 

(1) That the Rule made must be for the administration and enforcement of Chapter 1 of Title 128 of the Revised Civil Statutes of 

Texas, 1925, as amended, and (2) that the Rule must be reasonable. 

It remains to be considered whether Board Rule 615.1 is 

in conflict with cancellation procedures prescribed by statute. 

Article 7519a, Vernon’s Civil Statutes, which was adopted by the 

Legislature in 1953, and authorized the cancellation of all 

water rights under which no wa.ter has been used for a period of 

ten consecutive years prior to January 1, 1955, and prescribes 

a definite procedure for the cancellation of permits under the 

conditions therein set forth. In 1957, the Legislature amended 

Article 7519a to authorize the cancellation of all or any part of 

the water rights to the extent that water has not been used thereunder during the lo-year period prior to the institution of cancellation proceedings. Article 7519a prescribes specifically that 
)>i;;r. D-~rwood Manford, Pa.ge 5 (W-1037) 

notice of hearing and a hearing to be had before the Eoard 

proceeds to act pursuant to those statutory provisions, and 

this orcsedure must be followed under this type of cancellation. 

p. t ; c Az c ".‘ -,m ?earing, where provided for by the Legislature for a 

specific function is a prerequisite to the jurisdiction of an 

administrative agency to proceed to exercise that function. 

See Maryland Casualty Co. v. Lafield, 29 S.W.2d 444 (Civ.App 

1930‘), rev'd on other grounds, 119 7%~. 466, 33 S.W.;?d 187 

(lC30)* and American Surety Co. of New York v. Mays, 157 S.W.2d 

iiird (Civ.App.1941, error ref. w.o.m.) 

There is, however, an important distinction between 

cancellation under Board Rule 615.1 and cancellation under 

Article 7519a. Under Board Rule 615.1, only voluntar cancellations are authorized. The person whose rights *be migh affected by cancellation waives any right he would Otherwise have 

to a notice and hearing. It is axiomatic that one may waive such 

a right. 

Article 7519a applies where cancellations are involuntary. 

In such cases, notice and hearing is essential to any valid action 

of the Board. 

We do not, therefore, construe the two procedures as 

being in conflict, and without such conflict, it is apparent that 

ward Rule 615.1 meets the third limitation on the rule-making 

,power of the Board conferred by Article 7531. 

You have also asked whether you must wait until the ex- 

,piration of the current Eoard order extending the time for the 

District to commence construction before proceeding under Board 

EJle 615.1. We see no basis for such a requirement, for the 

waiver executed by the District waives all rights the District 

may have, including all rights granted under the Board's order 

extending the time for the commencement of construction. 

SUMMARY 

Under the facts submitted and assuming that all 

proceedings in promulgating the Rules, Regulations 

and Modes of Procedure of the Board of Water Engineers in 1953 and in the 1955 revision were 

regular, Board Rule 615.1 was valid when first 

adopted and when repromulgated in 1955. The 

Board may, under Board Rule 615.1, entertain 

cancellation of the subject permit prior to the 

expiration of the entension of time to commence 
. .- 

Mr. Durwood Manford, Page 7 (W-1037) 

construction under the subject permit. 

Very truly yours, 

WILL WILSON 

zez, 3, 

BY 

Houghton Brownlee, Jr. 

Assistant 

HB:jh 

APPROVED: 

OPINION COMMITTEE 

w . V. Geppert, Chairman 

Iola Barron Wilcox 

Robert Lewis 

Vernon Teofan 

Robert Rowland 

Sam Wilson 

REVIEWED FOR THE ATTORNEY GENERAL BY: 

Leonard Passmore