Untitled Texas Attorney General Opinion ( 1962 )

THE A``o``NEY GENERAL
OF TEXAS
Aus- ``.TEx.As
June 27, 1962
Honora.ble Joe D. Carter Opinion No. ``-1367
Chairma.n, Texas Wa.ter
Commission Re: Whether the Texa.s Water
Austin, Texa.s Commission is required
to pay the costs of pub-
lication of notice of
Dear Mr. Carter: hearing.
We quote the following from your letter requesting
an opinion:
“On March 20, 1962, a. petition wa.s received
for the creation of a water control and improvement
district under Article 7880-3. The petition was
accompanied by a $25.00 filing fee a.s required by
Article 7532 and a $250.00 deposit as required by
Article 7880-21. The Commission entered an order
on April 10, 1962, setting the petition for hearing
on June 5, 1962 and in accordance with usual pro-
cedure, a copy of the notlce of hearing was for-
warded to the petitioners so that they could have
the notice published as required by State law.
Heretofore, the proposed district has borne the
expense of publication; however, the petitioners
in this instance have forwarded the notice of pub-
lication statement to the Commission for payment.
“It is the petitioners’ contention that the
Sta.te should pay the cost of publication of the
notice of hearing in the creation of the water con-
trol and improvement district out of the $250.00
deposit. Under the 1929 amendment of Article 7880-21
the State was ‘to pay all costs which may be incurred
in such proceedings’ out of the $250.00 deposit and
return the unused balance to the petitioners. Since
the 1929 amendment required the State to use this
deposit to pay the costs incurred in the crea.tion,
the petitioners contend that the phrase ‘for the
use of the State as provided for other fees collected
under this act’ In then 1961 amendment of Article
7880-21 actually did not change the meaning of the
1929 amendment. . . e”
Honorable Joe D. Carter, page 2 (WW-1367)
You propound the following questions:
“(1) Is the Texas Wa.ter Commission required
to pa.y costs of publication of notice of hearing or
is this an expense to be borne by the petitioners?
“(2) If the expense of publication is to be
oaid by the Texa.s Wa.ter Commission, should it be
paid out of the $250.00 deposit made under Article
7880-21?”
The cost of publication is not included in Article
7532, V.C.S., since it provides that the filing fee of $25.00
is “for the benefit of the State.”
Prior to the amendment of 1961, Article 7880-21,
V.C.S., required a deposit of $250.00 “to pay all costs which
may be incurred in such proceeding” and provided that a.fter
the payment of such costs any unexpended bala.nce should be
repaid to petitioners.
By the amendment of 1961 (Acts, 57th Leg., Chap. 460,
Sec. 1, P. 10&O), Article 7880-21 was amended and the pertinent
part reads as follows:
11. . . A petition to be filed with said Board
must be a.ccompanied by a. deposit of Two Hundred
and Fifty ($250.00) Dollars for the use of the
state, as provided for other fees collected under
this Act; no pa.rt of which shall be returned, ex-
cept as hereinafter provided. The deposit shall
be deposited in the hands of the State Treasurer
to be held in trust outside the State Treasury
until the Board does either grant or refuse such
petition, at which time the Board shall direct the
State Treasurer to transfer said deposit into the
General Revenue Fund; provided, if at any time
prior to the hearing, as hereinafter provided, the
petitioners desire to withdraw said petition, then
and only in that event, the Board &ail direct the
refund of said deposit to petitioners, or their
attorney of record, whose receipt therefor shall
be sufficient. . . .”
We see that under the 1961 amendment instead of
providing that the deposit of $250.00 is to be used to pay
all costs as previously provided, it is now to be used for
the use of the State and it is specifically provided that
no part of same shall be returned unless prior to the hear-
ing the petition is withdrawn. The amendment also provides
that the amount of said deposit shall be deposited in the
Honorable Joe D. Carter, pa.ge3 (``-1367)
hands of the State Treasurer in trust until the Board either
grants or refuses the petition. This provision is for the
purpose of keeping the money out of the State Treasury until
it is seen whether the petition will be withdrawn in order
that it may be returned if the petition is withdrawn before
the hearing. If it should be placed in the Treasury it could
not be withdrawn except by an appropriation of the Legislature.
(Article 8, Sec. 6 of the Texas Constitution)
It is noticed that there is no provision made for
the use of the money except for two purposes: (1) return it
if the petition is withdrawn prior to the hearing or (2) de-
posit it in the State Treasury if the Board grants or refuses
the petition.
Since the Act makes no provision for the payment of
the costs of publication of the notice and makes only the two
provisions as set out above for disposition of the deposit, it
naturally follows that it cannot be used to pay the costs of
publication. Therefore, in answer to your first question you
are advised that the Texas Water Commission is not required to
pay the costs of publication of a notice of hearing and that
this is a cost to be borne by the petitioners. This ma.kes an
answer to your second question unnecessary.
SUMMARY
The Texas Water Commission is not required
to pay costs of publication of a notice of hear-
ing of a petition to create a water control and
improvement district created under Article 7880-3,
V.C.S.
Yours very truly,
WILL WILSON
HGC:dsd
Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Frank Booth
Charles Lind
Woodrow Curtis
Robert Lewis
REVIEWEDFOR THE ATTORNEYGENERAL
BY: Leonard Passmore