Hon. H. A. Beckwith, Chairman
Board of Water Engineers
Austin, Texas            Opinion No. V-1297
                         Re:   Requirement for notice
                               and hearing upon appli-
                               cation for change of place
                               of use of permitted waters
                               and the fees to be charged
Dear Mr. Beckwith:             upon such an application.
          Your first question Is whether it is mandatory
for the Board to Issue notice and hold a hearing upon an
application for change of place of use of permitted wa-
ters.
           In an opinion written by this office on Feb-
ruary 10, 1921 (Att'y Gen. Ops., Bk.55, p.149, published
in Report and Opinions of Att'y Gen., 1920-1922, p.789),
.it was held .thatan application for change of purpose
of use '"s~houldbe treated as an original one, requiring
advertisement, public hearing, etc., In like manner as
 if it were an original application for an original per-
mit." (Emphasis supplied throughout.) Recognition and
approval of this opinion was given in Att'y Gen. Op.
O-3397 (19&l), dealing with the change of place of use.
          In Opinion V-390 (1947) addressed to the
Chairman of the Board of Water Engineers, this office
held that "when passing on application for change of
purpose and place of use, you are performing an ad-
ministrative function, one which concerns regulation
or supervision of an already issued permit, and In ful-
filling this function you determine in the usual manner
after public notice and hearing, if the proposed change
will be for a purpose authorized by statute, will lm-
pair existing rights, and the public welfare Involved
In the change.*
Hon. H. A. Beckwith - Page 2 (V-1297)


           Prior to Clark v. Briscoe Irr.Co., 200 S.W.
 2d 674 (TeX.ClV.App.l947), the courts of this State
'had never passed on the question of your authority to
 entertain an application for change of purpose or
 place of use. In deciding this question in the affirm-
 ative, the court held, at page 682:
          II
           . 0 a No right of appropriation
     may be acquired without application to
     the Board, setting forth the place and
     purpose of use, and a permit granted by
     the Board designating the place and pur-
     pose of use. The Board is charged with
     the duty of duly informing itself upon.
     all matters relating to the proper per-
     formance of Its duties in passing upon
     the application; is required to have a
     hearing~after due notice to all Interested
     parties; and IS charged With the express
     duty to determine, Inter alla, whether
     granting the permit will best subserve the
     public interest.
          "These statutory provisions clearly
     invest the Board with the power and duty
     to determine whether the uses for which
     the application is made meet the statu-
     tory objectives, including that of being
     in the public interest. Necessarily the
     determination of that Issue Involves the
     exercise of a sound and reasonable dis-
     cretion. Nor is it contended that the
     Board has not such discretion in passing
     upon an original application.
          "Every consideration for vesting
     such original discretion in'the Board
     applies with equal force for its exercise
     in case of change of purpose or place of
     use . e *"
          The foregoing decision and opinions draw the
Board's authority to entertain an application for change
in place of use from the various statutory provisions
dealing with an original permit and relate the function
performed by the Board upon such an application to
these statutory provisions. The matter of notice and
Hon. H. A. Beckwlth - Page 3 (V-1297)


hearing on the ~originalpermit is covered by Articles
7508, 7509, and 7510, V.C.S. Article 7508 provides
that "before the Board shall approve such an appllca-
tion par original permlfl and Issue any such permit,
notice of such application shall be given." Article
7509 provides that "such noGshall.be      published"
and that "a copy of such notice shall be transmitted
  . . . to each claimant or appropriator of water
from such source of water supply." Article 7510 pro-
vides that the Board "shall sit to hear such appli-
cation”  at the time anmce     stated in the notice.
          Inasmuch as the Board's authority to enter-
tain an application for change is drawn from, and is
related to, the function it performs upon the original
permit application, it would seem that the mandatory
provisions of Articles 7508, 7509, and 7510 apply and
require notice and shearingupon application for change
of purpose and place of use. We construe this to be
the effect of the holdings of the Clark case and the
quoted oplni~onsof this office. Ifare      correct
in this, then notice and hearing are jurisdictional
In the sense that the permit upon change would not be
valid without ,them. If the permit is to be assured
of validity, the only safe course is to treat the
matter of notice and hearing as mandatory.
          Your other question deals with the fees to
be charged upon a pending application for change of
place of use. The applicant paid the maximum use fee
required by Article 7532 when he acquired his original
permit and contends that this excuses him from paying
the filing, recording, and postage fees which you seek
to exact under Articles 7532 and 7511, V.C.S.
          Article 7532 provides for four separate
and distinct types of fees, viz, filing, recording,
certification, and use. After setting out the amounts
to be charged for filing, recording, and certification,
the statute provides:
                 "In addition to the fees herein
     otherwise   provided there shall be paid to
     the Board   for the benefit of the State the
     following   fees upon each application for a
     permit to   acquire a water right:
                                                          .


Hon. H. A. Beckwith - Page 4 (V-1297)


          "For the use of water for irrigation,
     ten cents per acre for each acre to be
     Irrigated.
          "For the use of water for hydraulic
     power twenty-f-   cents for each theoreti-
     cal horsepower.
          "For use of water for steam or gas
     power planTcoolIng,   condensing or steam
     purposes twenty-five cents for each indi-
     cated,horsepower.
         "For other uses not specifically
    named herein twenty-five cents per acre
    foot based on estimated annual consumption.
           "For the use of water for parka,
     pleasure resorK    game preserves, twenty
     cents per acre foot of storage, based on
     the holding capacity of reservoir.
         "The maximum fees for any use of water
    under a nermlt shall not exceed one thousand -
    five hundred dollars and for each additional
    use under the same permit for which such
    maximum fee is paid the fee shall not exceed
    two hundred dollars in addition to said sum
    of one thousand five hundred dollars."
          To us this language clearly relates the stat-
utory maximum to the fee collectible for the use of
water. The use fee Is payable to the State for the use
of Its waters. The filing, recording, and certiflca-
tion fees are paid to the State for services rendered
by the Board. Article 7511 simply requires the appli-
cant to pay ~themailing and publication costs upon
issuance of notice of hearing. This charge and the
filing, recording, and certification fees due under
Article 7532 are separate and distinct from the
maximum fee which can be charged for use and are
therefore to be paid and collected in addition to
the use fee. By the same analogy drawn above with
respect to notice and hearing, these fees are to be
charged upon'an application for change of purpose
or place of use the same as upon an original appro-
priation application.
Hon. H. A. Beckwith - Page 5 (V-1297)


                      SUMMARY

         Notice and hearing are mandatory
    upon all applications for change of pur-
    pose and place of use of permitted water.
    The filing, recording, certification, and
    postage fees prescribed by Articles 7532
    and 7511, V.C.S., are collectible upon
    such an application even though the appll-
    cant paid the maximum statutory use fee
    when securing his original appropriation
    permit.
                            Yours very truly
                              PRICE DANIEL
                            Attorney General



                                H. D. Pruett, Jr.
                                       Assistant
HDP:bt
APPROVED:
Jesse P. Luton, Jr.
Reviewing Assistant
Everett Hutchinson
Executive Assistant
Charles D. Mathews
First Aaslstant
