              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
