Untitled Texas Attorney General Opinion ( 1961 )

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 pro-
ceedings 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-pro-
mulgated 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 Improve-
ment 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 construc-
tion 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 sub-
mitted 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.tat 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.ndtha.tthe 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 pur-
porting to wa.iveall 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,rdma.yproceed
under Board Rule 615.1, a procedure whic’hauthorizes ca.ncella.tion
of a..
permit to appropriate water without notice of t,eari.ng
a,nd
‘hearingthereon w’herethe holder of the permit tenders the same
voiunkrily for ca,ncellationwith a.writteilwa.iver.
For the purpose of showing E?cardRule 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.dvisedthat the holder of a permit or certified
filing no I.ongerdesires to a,bpropriatewater,
the Board sends a written waiver to the owner
of the wa.terright a.ndthe owners of the land,
if different ownerships a.reinvolved. If t~he
permit or certified filing is held by a polit-
ical 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: Not-l
e.
(d) Action of the Zoard: An order ca.nceiing
the ,permitor filing in whole or in part is
-nt-recl. a.ndmailed to tile county clericfor re-
cording, with t3e request to i:eturnsame for
fiii~ng.
I.:-. Pa.ge3
D.m~ood.I,'ianford, (Wd-1037)
“615.2CANCELLATION 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 re-
solves 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 reg-
istered 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 enforce-
ment of its provisions, and shall have a seal,
the form of which it shall prescribe. All
such rules and regulations made for the ad-
ministration 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.“....
(Eknphasissupplied)
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 reg-
ulations 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 there-
with, 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 recog-
nized; and to ascertain from necessary inves-
tigation the character of the principal re-
quirements of the distinct regional division
of the watershed areas of the State for the
uses herein authorized, to the end that dis-
tribution of the right to take and use the
waters of the State may be the more equitably
administered in the public interest, and privi-
leges granted for the uses recognized may be
economically co-ordinated, achieving the maxi-
mum of public value from this resource; and
recognizing alike the distinct regional ne-
cessities 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 enforce-
ment 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.terhas 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 there-
under during the lo-year period prior to the institution of can-
cellation proceedings. Article 7519a prescribes specifically that
)>i;;r.
D-~rwoodManford, Pa.ge5 (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;cAzc -,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.;?d187
(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 cancel-
*be migh
lations are authorized. The person whose rights af-
fected 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
,powerof the Board conferred by Article 7531.
You have also asked whether you must wait until the ex-
,pirationof 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 En-
gineers 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