                                   The Attorney        General of Texas
                                                   June 13, 1984
JIM MATTOX
Attorney General



Supreme Court Building           Honorable Gib Lewis                    Opinion No. JM-164
P. 0. BOX 12546
Austin, TX. 76711. 2548
                                 Speaker
5121475.2501                     Texas House of Representatives         Re:   Whether actions taken
Telex 9101674-1367               P. 0. Box 2910                         pursuant to section 12.051 of
Telecopier   512i475-0266        Austin, Texas   78769                  the Water Code are subject to
                                                                        the Administrative Procedure
714 Jackson, Suite 700                                                  Act, art. 6252-13a. V.T.C.S.
Dallas, TX. 75202.4506
2141742.6944                     Dear Speaker Lewis:

                                      You ask the following question:
4624 Alberta   Ave., Suite 160
El Paso, TX. 799052793
9151533.3464                               Are actions taken pursuant to the provision of
                                           section 12.051 of the Texas Water Code subject to
                                           the procedural requirements of article 6252-13a,
    1 Texas, Suite 700                     V.T.C.S., relating to administrative hearings?
muston.    TX. 77002-3111
713223.5866
                                 We conclude that the feasibility order issued pursuant to the
                                 provisions of section 12.051 of the Water Code is not subject to the
606 Broadway. Suite 312          procedural   requirements   on   article  6252-13~1, V.T.C.S.,    the
Lubbock, TX. 79401.3479          Administrative Procedure and Texas Register Act [hereinafter APTRA]
6Oiil747-5236
                                 relating to administrative hearings. A finding as to feasibility made
                                 by the board is not a "contested case" and, therefore, does not fall
4309 N. Tenth, Suite B           within the ambit of APTRA.
McAllen, TX. 76501-1665
512/662-4547
                                      You inform us that the Texas Water Development Board on October
                                 14, 1983 approved a flood drainage plan proposed by the U. S. Army
200 Main Plaza, Suite 400        Corps of Engineers for the Lower Rio Grande River Basin. This action
San Antonio, TX. 76205.2797      was taken pursuant to authority conferred by section 12.051 of the
512/225.4191                     Water Code. Several persons opposed the board's approval of the plan,
                                 one of whom filed a motion for rehearing with the board on October 28,
An Equal Opportunity/
                                 1983. By letter dated November 9, 1983, the board informed the person
Affirmative Action Employer      filing the motion for rehearing that its decision was final as
                                 provided in section 12.051(f), Water Code, and that the proceedings
                                 set forth in section 12.051 do not fall within the ambit of article
                                 6252-13a, V.T.C.S., Administrative Procedure and Texas Register Act.

                                      Section 12.051 of the Water Code sets forth the following:

                                           012.051. Federal Projects
Honorable Gib Lewis - Page 2   (JM-164)




             (a)   In this section:

                  (1) 'Federal     project'    means     an
             engineering undertaking or work to construct,
             enlarge, or extend a dam, lake, reservoir, or
             other water-storage or flood-control work or s
             drainage,    reclamation,    or   canalization
             undertaking or any combination of these
             financed in whole or in part with funds of the
             United States.

                  (2)  'Engineering report' means the plans,
             data, profiles, maps, estimates, and drawings
             prepared in connection with a federal project.

                  (3) 'Federal agency' means the Corps of
             Engineers of the United States Army, the Bureau
             of Reclamation of the Department of Interior,
             the Soil Conservation Service of the Department
             of Agriculture, the United States Section of
             the    International   Boundary    and    Water
             Commission, or any other agency of the United
             States, the function of which includes the
             conservation, development,     retardation by
             impounding, control, or study of the water
             resources of Texas or the United States.

             (b) When the governor receives an engineering
          report submitted by a federal agency seeking the
          governor's approval of a federal project, he shall
          immediately forward the report to the department
          for its study concerning the feasibility of the
          federal project.

             (c) The board shall hold a public hearing to
          receive the views of persons and groups who might
          be affected by the proposed federal project. The
          board shall publish notice of the time, date,
          place, nature, and purpose of the public hearing
          once each week for two consecutive weeks before
          the date stated in the notice in a newspaper
          having general circulation in the section of the
          state where the federal project is to be located
          or the work done.

             (d) After hearing all the evidence both for
          and against approval of the federal project, the
          board  shall enter its order approving or            -.
          disapproving the feasibility of the federal




                                 p. 720
Honorable Gib Lewis - Page 3    (JM-164)




         project, and the order shall include the board's
         reasons for approval or disapproval.

             (=)   In determining feasibility, the board
          shall consider, among other relevant factors:

                   (1) the effect of the federal project
                 on water users on the stream as certified
                 by the commission;

                    (2)   the public interest to be served;

                   (3) the development of damsites to the
                 optimum potential for water conservation;

                   (4) the integration of       the federal
                 project with other water       conservation
                 activities;

                   (5) the protection of the state's
                 interests in its water resources; and

                   (6) the engineering practicality of the
                 federal   project,   including   cost   of
                 construction, operation, and maintenance.

            (f) The board shall forward to the governor a
         certified copy of its order. The board's finding
         that the federal project is either feasible or not
         feasible is final, and the governor shall notify
         the federal agency that the federal project has
         been either approved or disapproved.

            (g) The provisions of this section do not
         apply to the state soil conservation board as long
         as that board is designated by the governor as the
         authorized   state   agency   having   supervisory
         responsibility to approve or disapprove of
         projects designed to effectuate watershed pro-
         tection and flood-prevention programs initiated in
         cooperation with the United States Department of
         Agriculture. (Emphasis added).

Section 12.051 of the Water Code was previously codified as section
6.073 of the Water Code. Section 6.073 replaced now-repealed article
7472e. V.T.C.S. Article 7472e. V.T.C.S., was enacted in 1955. Each
enactment was substantially similar with regard to the matters at
issue in the instant request. Therefore, section 12.051, in its
original enactment, was passed prior to the adoption of APTIiA.




                                 p. 721
Honorable Gib Lewis - Page 4   (JM-164)




     Article 6252-13a. V.T.C.S., [APTRA] provides in sections 13 and
19 for agency action and for judicial review, respectively of a "final
decision" or "order adverse to a party" in a "contested case."
Section 16 sets forth what constitutes s final decision or order, the
procedure for filing a motion for rehearing, and that such a motion is
a prerequisite to appeal. APTRA at section 3(2) declares that

         '[clontssted case' means a proceeding, including
         but not restricted to ratemaking and licensing, in
         which the legal rights, duties, or privileges of a
         party are to be determined by an agency after an
         opportunity for adjudicative hearing. (Emphasis
         added).

Neither section applies if the proceeding does not constitute a
"contested case" as defined in section 3(2). A "final administrative
order" is one that leaves nothing open for future disposition; if a
rieht is made contineent
                    -    uuon
                          .   the occurrence of some future event. the
order is not final. Railroad Commission v. Brazos River Gas Company,
594 S.W.2d 216, 218 (Tex. Civ. App. - Austin 1980, writ ref'd n.r.e.);
Railroad Commission v. Air Products and Chemicals, Inc., 594 S.W.2d
219 (Tex. Civ. App. - Austin 1980, writ ref'd n.r.e.).

     In Big D. Bamboo, Inc. v. State, 567 S.W.2d 915 (Tex. Civ. App. -
Beaumont 1978, no writ), the court held that a "contested case" within
the meaning of APTRA:

         must be one in which the legal rights, duties, or
         privileges are to be determined by au agency after
         an opportunity for adjudicative hearing. The word
         'adjudicate' is defined in Black's Law Dictionary
         63 (4th rev. ed. 1968) as '[t]o settle in the
         exercise of judicial authority.      To determine
         finally. Synonymous with adjudge in its strictest
         sense. United States v. Irwin, 127 U.S. 125 . . .
         and Street v. Benner, 20 Fla. 700.' Accordingly,
         it appears to us that the hearing required by
         LAPTRAI must be one in which the agency conducting
         such hearing will, by a final and determinative
         order, decide the legal rights, duties, or
         privileges of the appellants, and in the absence
         of an appeal therefrom will be a final and binding
         decree with respect to any such legal rights,
         duties, or privileges.

Id. at 918.     This language indicates that the administrative
proceeding at issue here is not an "adjudicative hearing." This
hearing did not as a final matter determine the "rights, privileges




                                p. 722
Honorable Gib Lewis - Page 5    (JM-164)




and duties" of any person. That determination is within the sole
authority of the federal government.

     Moody v. Texas Water Commission, 373 S.W.2d 793 (Tex. Civ. App. -
Austin 1963, writ ref'd n.r.e.), supports our conclusion that this
administrative hearing is not a "contested case" within the meaning of
APTRA. Moody involved a challenge to a Texas Water Commission
feasibility order issued pursuant to article 7472e. V.T.C.S., the
now-repealed predecessor to section 12.051 of the Water Code,
regarding a federal water impoundment project. In rejecting a claim
that such order amounted to a denial of due process in violation of
both the Texas and federal Constitutions, the court declared:

          [tlhe order of the Texas Water Cormaission is in
          the nature of a recommendation concerning a
          project proposed for construction by an agency of
          the Federal Government and is not conclusive and
          does not colmnit the Federal Government to
          construct the project. (Emphasis added).

Id. at 797. The Moody court, citing Sun Oil Company v. Railroad
%ission,    311 S.W.2d 235 (Tex. 1958), noted that courts generally
can review only final actions of an agency having exclusive
jurisdiction of the matter concerned. The board under this statute
takes no "final action" determining the legal rights, duties, or
privileges of any party, but only makes a recommendation. The project
here contemplated is one to be constructed, in whole or in part, by
federal funds and falls within the lenitimate commerce Dower of the
federal government. United States v. &and River~Dam A;th%tv.      363
U.S. 229 (1960). No approva11 by the state of Texas is required for
the construction of such projects. See Neches River Conservation
District v. Seeman, 252 F.2d 327 (5th Cir. 1958). cert. denied, 358
U.S.820nderson             v. Seeman, 252 F.2d 321 (5th Cir. 1958).
cert. denied 358 U.S. 820 (1958).

      The court in Moody, supra, set forth the purpose to be achieved
by article 7472e. V.T.C.S., and characterized the act in the following
way :

            The opportunity of the State to comment
         officially upon the proposed project is derived
         from a provision of the Flood Control Act of 1944
         as amended, 33 U.S.C. §701-l(a). This Act is long
         and we do not copy such herein, but provision is
         made for plans, submission to Congress and that
         relations of the Chief of Engineers shall be with
         the Governor or an agency designated and for the
         written views     and  recommendations and    for
         transmittal of such plan to Congress, etc.




                               p. 723
Honorable Gib Lewis - Page 6   (JM-164)




          Anderson v. Seeman. 252 F.2d 321 (Fifth Cir.
          1958), cert. denied, 358 U.S. 820. 79 S.Ct. 32, 3
          L.Ed.2d 61.

             Prior to the enactment of Article 7472e there
          was no statutory procedure whereby the views of
          the State could be given to Congress on a project
          like the one involved herein and Sec. 8, the
          emergency clause in enactment of Article 7472e.
          recites the purpose of the Legislature.

             The several sections of Article 7472e set out
          in detail the procedures to be followed by the
          Governor and the Water Commission.

             The Act requires the Governor to submit reports
          of Federal Agencies received by him to the Texas
          Water Commission for a public hearing, for study
          and recommendations to him as to the feasibility
          of the project, and after such hearing that the
          Commission shall enter its order either approving
          or disapproving the feasibility of the project,
          giving its reasons therefor. Upon receipt of such              -.
          orders the Governor is required to notify the
          Federal Agency.

             The Act sets out in detail in the several
          sections the procedures to be followed in hearing,
          determining and order to be entered . . . .
          (Emphasis added).

Id. at 796-797.     Declaring that the nature and action of the
commission in similar matters has been held to be administrative, the
court stated that no provision for judicial review was prescribed in
the statute as might have been and "the fact that the legislature has
denied judicial review does not invalidate the Act." Id. at 797.
City of Amarillo v. Hancock, 239 S.W.2d 788 (Tex. 1951); Sanchez v. El
Paso Civil Service Commission, 475 S.W.2d 323 (Tex. Civ. App. - El
Paso 1971, writ ref'd n.r.e.). Admittedly at issue in Moody was
whether judicial review was required by due process prior to the
adoption of APTBA. But Moody is compelling as to its characterization
of the action taken by the board when it issues feasibility orders
pursuant to section 12.051 of the Water Code. The public hearing
provided by section 12.051(c) is more analogous to a legislative
committee hearing than it is to a party adjudicative hearing.

     Accordingly, we conclude that the board's feasibility order
issued pursuant to section 12.051 of the Water Code does not involve a   .-
"contested case" nor does it constitute a "final decision or order."




                                 p.724
,   .


        Honorable Gib Lewis - Page 7    (JM-164)




        Hence, the feasibility order issued pursuant to section 12.051 is not
        subject to the procedural requirements of article 6252-13a, V.T.C.S.,
        ("Administrative Procedure and Texas Register Act").

                                       SUMMARY

                    A feasibility order issued by the Texas Water
                 Development Board pursuant to authority conferred
                 by section 12.051 of the Water Code is not subject
                 to   the   procedural requirements of      article
                 6252-13a, V.T.C.S., ("Administrative Procedure and
                 Texas Register Act").




                                                 J /v&i
                                                  Very truly yours,


                                                       6
                                                  JIM     MATTOX
                                                  Attorney General of Texas

        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Jim Moellinger
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Rick Gilpin, Chairman
        Jon Bible
        Colin Carl
        Jim Moellinger
        Nancy Sutton




                                         p. 725
