Untitled Texas Attorney General Opinion

June 21, 1967 ..,
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Hon. J. D. Kirkland, Chairman ’ Opinion No. M-98
Texas Water Well Drillers Board
Austin, Texas Re: Whether a non-resident appli-
cant may be issued a license
under the Texas Water Well
Drillers Act.
Dear Mr. Kirkland:
You have asked that this office advise you on whether your Board
is empoweredto issue licenses to drill water wella in ‘Texas to non-
residents by the Water Well Drillers Act (Article 7621e, Vernon’s
Civil Statutes).
Section 3(a) of Article 7621e, Vernon’s Civil Statutes, rtatea
in mandatory terms that “It shall be unlawful for any person to act
as or to offer to perform services as a water well driller without
first obtaining a certificate of registration in the wanner pre-
scribed herein and purruant to the rules of Water Well Drillers
Board. ”
In Section 2, ibid, we find the only exceptions to the mandate
of Section 3(a): Section 2(d) excludes test holea for mines and
oil and gas wells, and Section 2(c) exempts from the licaneing re-
quirements anyone working on a drilling rig under the direct super-
vision of a duly licensed driller or a landowner drilling a water
well on his own land for his own use.
~Section 3(c) sets forth the,provirion that each applicant de-
siring to become a registered driller,muet submit an application
and an examination fee. Section 3(g) contains a “Grandfather Clause”
which expired August 31, 1966. Section 3(h) provides that: “Elfh’
applicant shall have been a resident of the State of Texas for not
less than 90 days ‘prior to makingapplication for registration as a
water well driller.” (Empharie ad&d). Here is the clearly stated
intent of the Legislature that the Board is without authority to
accept an application from an applicant who has resided in the State
for lers than ninety (90) consecutive days imediately prior to SUB-
mitting his applicatfon.
Hon. J. D. Kirkland, page 2, Opinion No. (M-98)
The residency requirement of Article 7621e is constitutionally
valid and such enactmant was a proper exercise of Legislative power.
It has long been the rule in Anglo-American jurisdictions that a 11;
tense or privilege of public character may be granted or withheld
for good cause by a proper exercise of the police,power’of the stats.
Merriwether v. Dixon, 28 Tex. 15 (1856); Saint Louis Southwestern Ry.
Co. of Texas v. Shiflet, 98 Tex. 326, 83 S.W. 677 (1904).
The Texas Supreme Court specifically upheld residency as a valid
qualification of licensing in De Grazier v. Stephens, 101 Tex. 194,
105 S.W. 992, 16 L.R.A. (N.S.) 1033 (1907).
The setting of minimum qualifications and standards of profi-
ciency for water well drillers InTexas for the purpose of preventlhg
groundwater pollution falls well within the purview of the valid
exercise of ‘the State’s police power in the interest of the public
health, safety, and welfare.
Under the Reciprocity Section (Section 4) of the Act, the Board
is empowered to dispense with the examination requirement for appli-
cants who hold certificates of qualification or registration from
certain states, territories, or possessions of the United States or
foreign countries equal to the Texas standards. Section 4 expressly
provides that applicants entitled to registration under the Act with-
out taking the examination ‘I. . I must show compliance with the reai-
dency requirements of Section 3, subsection (h) hereof.”
Therefore, we answer your query in the negative, and more fully
as follows:
(1) Pursuant to Article 7621e, an application for a Texas Water
Well Driller”8 Certificate may not be accepted unless the applicant
has resided in the State for at least ninety (90) consecutive days
immediately prior to tender of his application.
(2) The ~Texas Water Well Drillers, Board has the statutory duty
to require compliance with the said requirement, and may require an
affidavit, or other proof of residency, from each applicant.
(3) Non-residents, however, are entitled to the same exemptions
from licensing as are State residents.
a. They may drill water wells on land they own within the State
for their own use without a license.
b.,They may work on a drilling rig under the direct rupervisfon
of a duly licensed Texas Water Well Driller.
c.,And. they need not obtain a water well drilling license to
drill mining test holes or oil and gas wells.
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Hon. J. D. Kirkland, page 3, Opinion No. (M-98)
SUMMARY
Article 7621e, Vernonss Civil Statutes, sets a mandatory
prerequisite that any applicant who desires to drill or offers
to drill water wells in Texas must have resided within the
State for ninety (9Q) consecutive days immediately prior to
making application for such a drilling license.
VFgtruly yours,
-bAW#ORD c. MARTIN
Attorney
,; General of Texas
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Prepared by Roger Tyler and John Duren 1
Assistant Attorneys General
APPROVED:
OPINIONCOMMITTEE
Hawthorne Phillips, Chairman
W. V, Geppert, Co-Chairman
Houghton Brownlee
Malcolm Quick
Arthur Sandlin
Vince Taylor
STAFF LEGALASSISTANT
A. J. Carubbi, Jr.
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