Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MAlTOX
February 23, 1984
Attorney General
Supreme Court Bullding Mr. Harrison Stafford Opinion No. JM-130
P. 0. BOX 12548 President
Austin, TX. 78711. 2549 Lavaca-Navidad River Authority Re: Meaning of "commission"
5121475-2501
Telex 9101874-1367
P. 0. Box 429 for purposes of permit issued
Telecopier 512/4750266 Edna, Texas 77957 to the Lavaca-Navidad River
Authority
714 Jackson, Suite 700
Dear Mr. Stafford:
Dallas. TX. 75202-4506
214/742-8944
You have asked our opinion as to whether the 1977 reorganization
of the Texas Department of Water Resources has changed the duties and
4824 Alberta Ave.. Suite 160 responsibilities of the Texas Water Commission in such e manner that
El Paso, TX. 79905.2793 the term "commission" as used in Lavaca-Navidad River Authority's
9151533.3464
Permit No. 2776 should now refer to the executive director of the
P
Department of Water Resources, the Texas Water Commission, or both.
,Ol Texas. Suite 700 The language in question is contained in a condition to Permit No.
Houston, TX. 77002-3111 2776 which states:
71312255S86
This permit is issued subject to all superior and
604 Broadway, Suite 312
senior water rights in the Lavaca River Basin and,
Lubbock. TX. 79401-2479 as may be determined by the Commission, to the
8001747-5238 release of water for the maintenance of the
Lavaca-Matagorda Bay and Estuary system.
(Emphasis added).
4309 N. Tenth, Suite B
McAllen, TX. 78501~1SS5
5121682-4547 In your request, you state that equating the term "commission" in
Permit No. 2776 with the Texas Water Commission creates both practical
and legal difficulties. You recognize that the Texas Water Commission
200 Main Plaza, Suite 400
[hereinafter coarmission] presently has the judicial authority to
San Antonio, TX. 78205-2797
512/225-4191
impose a release requirement upon the permit holder but question
whether the commission has the expertise and support staff to
independently investigate the problem, review available information,
An Equal Opportunity/ and recommend a solution. Further, you question whether the
Affirmative Action Employer
commission has the jurisdiction to undertake such a determination.
In 1977, the legislature consolidated the Texas Water Rights
Commission with the Texas Water Quality Board and the Texas Water
Development Board. The legislature separated the legislative,
executive, and judicial functions of the consolidated agency, Texas
Department of Water Resources. Water Code §15.011-5.016. The Texas
Water Development Board and the commission are agencies of the state
p. 550
Mr. Harrison Stafford - Page 2 (.X+130)
and have legislative and judicial functions, respectively. Water Code
§§5.091 and 5.221. The executive director manages the administrative
affairs and exercises the executive function of the department. Water
Code $5.171.
After reviewing the Water Code provisions both before and after
the reorganization, we conclude that the term "commission" as used in
Permit No. 2776 means the Texas Water Commission. First, the
determination of whether the authority has to make releases of water
impounded in the reservoir authorized by Permit No. 2776 for
maintenance of the Lavaca-Matagorda Bay and Estuary System is a
judicial determination, in that the legal rights, duties, or
privileges of the authority and others are affected by such a
determination. Before an agency can take such action, affected
parties must be afforded an opportunity for a hearing in accordance
with the Texas Administrative Procedure and Texas Register Act.
V.T.C.S. art. 6252-13a. 513. Clearly, the executive director could
not conduct such a hearing, since the executive director exercises the
executive functions of the department. Water Code 05.171.
Secondly, the present Water Code vests in the commission ample
authority to make such a determination. All of the provisions giving
the commission the authority to impose a release requirement upon the
permit holder give the commission the authority to determine when the
requirement or condition should be exercised.
Before the reorganization, the general powers and duties of the
Texas Water Rights Commission were found in sections 6.051-6.076 of
the old Texas Water Code. Presently, the general powers and duties
are found in sections 5.261-5.268 of the Texas Water Code. Other
specific powers and duties are prescribed in other sections of the
code. The authority of the commission to determine water releases
under the permit condition is found in its general powers and duties
and in sections 11.147, 12.014, 16.012(b)(5), 16.012(d), 16.013, and
16.058.
Section 11.147 requires the commission to assess the effects of
the issuance of a permit to store, take, or divert water on the bays
and estuaries of Texas. The authority to consider this question and
to impose release requirements in a permit gives the commission the
implicit authority to determine at this time the release required by
such a permit condition.
The lack of expertise about which the authority is concerned
would be applicable to the permit consideration as well as the present
determination of the release requirement. The legislature, however,
has provided that the department and the executive director's staff
provide the connnissionassistance in considering effects on bays and
estuaries. Section 12.014 provides that the commission shall use the
p. 551
Mr. Harrison Stafford - Page 3 (``-130)
surveys, studies, and investigations conducted by the staff of the
department in carrying out the commission's duties and functions.
Section 16.012(d) requires the executive director to assist the
commission in carrying out the purposes and policies stated in section
12.014. Further, section 16.013 requires the executive director to
advise and assist the commissio" with regard to engineering,
hydrologic, and geologic matters concerning the water resources of the
state.
Section 16.012(b)(S) states that the executive director shall
"investigate the effects of fresh water inflows upon the bays and
estuaries of Texas" under his general authority to make studies and
surveys. Section 16.058 specifically requires the executive director
to carry out a comprehensive study of the effects of fresh water
inflows upon the bays and estuaries. While the executive director has
the authority to make studies concerning bays and estuaries, there is
no authority for the executive director to determine the legal rights
and duties under a permit. This is a function given to the
commissio".
I" co"cl"sio", the 1977 reorganization has not stripped the Texas
Water Commission of the authority to determine what release of water,
if any, is necessary for the maintenance of the Lavaca-Matagorda Bay
and Estuary System. The reorganization, however, has given the
executive director the authority and duty to make studies and to
assist the commission in carrying out its duties and functions. The
permit in question specifically states that it is issued subject to
the commission's right of continual supervision. There is no
provision in the present Water Code that would require the commission
to wait for the executive director to i~nitiate a proceeding to
determine what release of water is necessary under Permit No. 2776.
The commission has acted within its authority and jurisdiction in
initiating the proceeding upon its own motion.
SUMMARY
The 1977 reorganization has not stripped the
Texas Water Commissio" of the authority to
determine what release of water, if any, is
necessary for the maintenance of the
Lavaca-Matagorda Bay and Estuary System.
JIM MATTOX
Attorney General of Texas
p. 552
Mr. Harrison Stafford - Page 4 (m-130)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Lambeth Townsend
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Jon Bible
Colin Carl
Susan Garrison
Jim Matthews
Jim Moellinger
Nancy Sutton
-,
p. 553