                     July 18, 1952



Hon. H. A. Beckwith
Chairman, Board of,Water,Rnglneers
Austin, Texas,
               Opinion No. V-1482
               Re:, Authority of:the Board of
                    Water'Engineersto'distin-
                    guish between "receiving"~
                  ,.and "filing"'applicatlons         I



                    to enable the return of
                    filing fees after prelimi-
                    ;;;;o~amlnations of appli-
                           .
Dear Sir:
            'In yourrequest   for a,nopinion you state:
          "~TheBoard of Water Engineers has
     required all fees to be paid at the time
     an application Is 'recelved';.theBoard
     then makes preliminary examination.under~
     Article 7503, and If the application Is
     rejected it has been the practice of the
     Board.to return all fees. No~applicatlon
     is now 'filed' until all"amendatory.matter
     is requested and obtained.' The applica-
     tion, etc., Is now kept in a. 'received'
     status until the file is complete."
You then state other possible ~interpretationsof the
statute and ask: ,,
          "1. Do existing statutes govern-
     ing the Board of WaterEngIneers of Texas
     allow the 'receiving' of applications and
     preliminary'examination thereof before
     same are 'filed,' or must applications be
                                                       -      -


Hon. H. A. Beckwith - page 2 - V-1482


     'filed' immediately upon receipt of
     same with correct fees, and preliminary
     examination  then be made under Article
     7503,  R.C.S., 1925?
          "2. Does the last paragraph of
     Article 7532, R.C.S., 1925, prevent the
     Board of Water Engineers of Texas from
     returning any filing fees?
          "3.  If the Board must 'file' an
     application before preliminary examination
     is made, can the Board adopt .a rule so as
     to require submission of corrective data
     within ten (10) days or other reasonable
     time, after preliminary examination Is
     completed and further provide that any ap-
     plicant who falls to amend and furnish the
     required data within such time may suffer
     the rejection of his application for failure
     to comply with Board rules?"
          The following articles of Vernon's Civil Statutes
are pertinent to your inquiry':
          Art. 7501 -- "Every such application
     shall be accompanied by the fees herein-
     after provided, and shall not be filed or
     considered until such fees are paid."
           Art. 7503 -- "Upon the filing of such
     application, accompanied by the data and
     fees hereinbefore provided, it shall be,
     the duty of the Board'to make a preliminary
     examination thereof and, If It appear that
     there is no unappropriated water in the
     source of supply, or that, for other reasons,
     the proposed appropriation shall not be al-
     lowed, the Board may thereupon reject such
     application; in which case, If the applicant
     shall elect not to proceed further, the
     Board may return to such applicant any part
     of the fees accompanying such application."
          Art. 7504 -- "The Board shall determine
     whether the application, maps, plats, con-
-   .
        Hon. H. A. Beckwith.: Rage 3   -   V-1482




               tours,,plans, prof.$lesand statements
               accompanying same.are in compliance
               with the provisions -of the"Board and    ~.
               may require the amendment thereof."
          ,.
                   ‘.



                : Articles 7503 and 7504 were,.Rassed.asdifferent
        para raphs.oP Section 22-of Acts 35th,Leg., R..S,1917,
        ch. 88, p. 211, and should be construed accordingly.
                                                         - _  You
        will note that-the first sentence of Article 7503 lndi-
        cates .that.the.applicationshould be "accompanied by the
        data and fees"provided in.the'statute before it is
        filed.: Thenda.tawhich should accompany an application
        is set out in.Articles 7493, 7494,,..and
                                               7500; V.C.S. The
        Board 1s.directed,in Arti.cle.7504,V.C.S., to determine
        If this data complies w,ith-the,requlrementsi
                  That the application ~shouldnotbe. filed'until
        It is received in proper form is further Indicated by
        Article 7523, V.C.S., which provides that the priority
        of the appropriation "shall date~from the filing"of the
        original applica~tionin the office.of the Board.   The
        Legislature would not have intended~a priority to,date
        from the submission of an incomplete application. This
        has long been.the interpretation given the~statute by the
        Board of Water Engineers. Article 7488, V.C.S., gives
        the Board power to make all needful rules for Its govern-
        ment and proceedings. Pursuant to this article, the
        Board adopted Rule 3, Rules and Regulations of the Board
        of Water Engineers, which provides:
                    "All.applicationsfor permits to use
               or store water, which are not in conform$ty
               with the statute, or are not accompanied by
               the required filing fees, shall be, if in
               the judgment of the Board it be necessary
               to amend,or revise same,.returned to the ap-
               plicant; but ifs the fillng~fees be insuffi-
               cient such application may-be ,heldpending
               notice to .the.applicantof amount of.fees
               necessary. In no event shall an applicant
               have priority based onany other dating than
               that which indicates the da.teof recelpt>in
               this office of the corrected application, and
               the receipt of the full filing fees."
          Hon. H. A. Be&with    - page 4 - V-1482
r,i::ft
e rii
    ."


          In the absence of provisions of the statute to the con-
          trary, this departmental tiotitructlonand rule Is per-
          suasive. Shaw v. Stronq, 128 Tex. 65, 96 S.W.2d 2 6 291
          (1936); Kay vi Schneider, 110 ?ex. 369, 221 SIW. 8 lo* ~,(1920)
                    In answer to your first question, therefore; the-
          application should not be filed until thenrequirements
          with rerlpectto the form of the application and Eiccom@anyL
          ing data and fees have been complied with.
                    However, It Is, our opinion that the "prellmlhary
          examination" mentioned in Article 7503 does not refer to
          examlnation'for the purpose of determxning the sufflc~iency.
          of the application and accompanying data as to form, Hthic)i
          would take place before the application is filed. After
          the application Is flled,'the Board then makes the pre-
          liminary examination mention&d in Article 7503 for the
          purpose of ascertalnlng'whether the application should
          be denied for atiyof the reasons set out,ln that artlcleT
                    In your second question you inquire whether~
          filing fees may be returned by the Board. Artlrcle7532,
          V.C.S., provides, in part:
                    "The board shall charge and collect for
               the benefit of the State the fees hereinafter
               provided, . . . said fees being as follbws:
                     11. . .

                    "For filing each application for a permit          1'
               a fee of $Pj.OQ and costof publishing notice
               and maillllgnotices.
                     n
                                                                       -, :
                    "The fees paid upon application for a per-
               mit qther khan the filing fees herein provided
               shall be held by the Board until said appli-
               cation is passed upon, and if the same ia n&t
               granted such fees shall be returned to the ap-
               plicant therefor, prdvided if such application
               Is thereafter granted by judgment of a court;
               then said fee shall be paid before such permit
               shall be effective."
Hon. H. A. Beckwith - page 5 - v-1482'


          Article 7532 direct.s..that
                                    certain fees not
Including the filing fee shall be returned under.given
conditions. It does not preclude the return of the
filing fee. Article 7503 provides tha~tupon the filing
of the application, the Board ls.,to,make a prelim%.nary
examination thereof and if there.is no'unappropriated,
water or if, for other'reasons, the abpropriatibn
should~not be allowed,and the applicantshall note.lect
to proceed further, "the Board'may re~turnto such.ap;
pllcant any part of the ~fees.accompanying~~
                                           such appli-
cation.' Therefore,.the.Board may;'.'ln:i:tsdiscretion,
return any part of the filing fee.:.where-lthasd&ifed
the appropriation on preliminary~examination.
                                        ./     :~
          As Article 7532 dire&s the collectionof a
fee for flling~the application and-Article7503 contains
the only provision allowing a.refund, the filing fee
should be retained in all.cases where the application
has been filed unless the application is deni.edyonSthe
basis of the preliminaryexamination. That ~p'art0.fthe
filing fee collected in advancefor cost of publishing~
notice and.mailing notices should, of course,~,berefunded
where such costs are not incurred.
           In answer to your third question, the filing of
an application would not preclude the Board from.there-
after requiring further amendment 'or supplemental material
as provided in the statutes. Under the~power.conferred by
Article 7488,  the Board could adopt a ~rule req@lng    the
amendment to be made within a reasonable time to .-.be specl-
fied in each instance.
          The conclusions reached in- this opinion are
based upon the provisions of the particular.'statutes
here involved. They are not intended to apply generally
to statutes which make no distinction between the sub-
mission of an application and its filing, nor do they
necessarily apply where the statute makes no provision
for a return of the filing fee.
                                                                  ,   .



cTi’      Hon. H.   A.   Beckwith - page 6 - V-1482
i-2  *,


                                     SUMMARY

                      The Board of Water Engineers upo,n
               receiving an application for approprla-
               tion of water should refuse to file,lt
               unless it is in the statutory form and
               accompanied by the required data and fees.
               Upon the filing of the application; lf~
               it appears on preliminary examinatl,on.~that
               there is no unappropriated water in,the
               source of supply or thatfor other reasons
               It should not be .allowed,the.Board may
               reject the application Andyreturn any part
               of the filing fees the Board deems proper,
               Otherwise, the Board should retain all
               fees properly charged for filing the ap-
               plication.
                       The Board may adopt a rule requlr-
                lng amendatory or supplemental material
                to be filed within a reasonable time.
                                           Yours very    truly,
                                            PRICE DANIEL
          APPROVED:                       Attorney .General
          Jesse P. Luton
          Land Division
          Mary K. Wall
                                           By K&%4&
                                              K. B. Watson
          Revfewing Assistant                         Assistant
          Charles D. Mathews
          First Assistant
          KBW:bt
