Judges: DAN MORALES, Attorney General of Texas
Filed Date: 5/3/1991
Status: Precedential
Modified Date: 7/6/2016
Mr. Allen Beinke Executive Director Texas Water Commission P.O. Box 13087, Capitol Station Austin, Texas 78711-3087
Re: Authority of an underground water conservation district to assess annual permit and registration fees (RQ-2193)
Dear Mr. Beinke:
An underground water conservation district operating under chapter 52 of the Water Code must require permits for the drilling and equipping of certain water wells within the district. Water Code section 52.166, et seq. Section 52.170 exempts various kinds of wells from the permitting requirement; however, subsection (g) of that section requires such exempt wells to be registered with the district and to conform to certain district rules.
You ask whether, under the rule-making powers provided for in section 52151, such districts have authority to impose fees for well permitting or registration. Section 52.151 provides: A district may make and enforce rules to provide for conserving, preserving, protecting, recharging, controlling sub-sidence, and preventing waste of the underground water of an underground water reservoir or its subdivisions and to carry out the powers and duties provided by this chapter.
Neither chapter 52 nor any other provisions of general law applicable to underground water conservation districts specifically provide for a district's imposition of a fee in connection with well permitting or registration. Prior attorney general opinions have consistently ruled that public entities, other than home-rule cities, may not charge a fee unless it is specifically provided for by law, and that fees are not permitted by implication.See, e.g., Attorney General Opinions
A brief submitted in connection with your request cites two Texas appellate court cases for the proposition that the power to regulate an activity includes the power to impose a fee to cover the cost of regulation. Producers Ass'n of San Antonio v. City of San Antonio,
The Doeppenschmidt opinion dealt with a license fee a city had attempted to impose on motor vehicles used for hire; it did not indicate whether the city in question was home-rule. Doeppenschmidt struck down the fee there because it found that applicable state law specifically denied the city the power to impose the fee.
We believe that a court today, if presented with the issue whether an underground water conservation district has the implied power under section 52.151 to impose a fee for permitting or registering wells, would follow the rule recognized by the Supreme Court in Moore v. Sheppard, Nueces County v. Currington, and McCalla v. City of Rockdale, supra — that fees must be specifically provided for by law and are not permitted by implication — and would accordingly hold that such districts are not thereby authorized to impose the fees at issue.2 Because we conclude that section 52.151 does not provide authority to impose the fees in question, we need not address your other questions.
Yours very truly,
DAN MORALES Attorney General of Texas
WILL PRYOR First Assistant Attorney General
MARY KELLER Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.) Special Assistant Attorney General
MADELEINE B. JOHNSON Chair, Opinion Committee
Prepared by William Walker Assistant Attorney General
Lower Colorado River Authority v. City of San Marcos , 523 S.W.2d 641 ( 1975 )
Nueces County v. Currington , 139 Tex. 297 ( 1942 )
Producers Ass'n of San Antonio v. City of San Antonio , 326 S.W.2d 222 ( 1959 )
Doeppenschmidt v. City of New Braunfels , 289 S.W. 425 ( 1926 )
McCalla v. City of Rockdale , 112 Tex. 209 ( 1922 )