                                         January'l3, 1939
Honorable John ~W.Pritchett
Member Board of Water Engineers
Austin, ,Texas
                                               :
Dear Mr. Pritchett:                Opinion No.
                                           No; 78
                                   Re: Public waters".:
Your letter'of 'Jan&y '9, 1939, 'addressedto'Honorable Ge'rald
C. Finn, Attorney~General, :asking for an opinion .on,what fees,
if any, the Board of.Water.Engineers.can charge the State'Parks
Board, has been received.,
Part of your letter i,sas follaws: ',.
    "The Texas State 'Parks Board; '&order to',,comply.
                                                      with 'the'
    statutes relative to the impounding,and use of the public
    waters of this state and to establish its rights relative
    thereto,:.hasfi-ledan applicat.ionwith this board for a
    permit ~to construct:a dam qnE~the,NavasotaRiver and to im-'
    po,und.and,~appropriate.certain:
                                   publ+cwater.~
               .,:,
    *The statutes provide,‘.asin:~A&&le7532a,'   Revised Civil
    Statutes,:as carried'forward inVernon's.'resision of Volume
    21, that this board shall charge and collect c,ertainfees
    before filing and considering an application for a permit to
    appropriate public waters.                   :~~

    "This Board is insdoubt as ,to"whetheror note it.should col-
    lect the usual filing fee from~the Texas State Parks Board
    and requests your..
                      advice in the matteri"
In,your letter you refer&the    fact that 'thisDepartment has
previously rendered opinionson questions similar~to this. No
Texas appellate court, .asfar as we.can ~ascerta.in,~
                                                   has,acted
on this question; and we feel that the opinions heretofore ren-
dered by this department on this question were sound, and we
will be governed thereby.,
On June 30, 1925, in an opinion.written by Mr. C.~ L. Stone to
Mr. Turner E. Hubby, Game, Fish.,&Oyster Commiss.ion,this depart-
ment held:                   .                ',
Hon. John W. Pritchett, Page 2    O-78


     ”
      ...the Game, Fish & Oyster Commission would not be re-
     quired to~pay to the Board of :JaterEngineers a fee for
     filing his application for such water under the requirements
     of the statute."
On March G, 1938, in an opinion written by Mr. H. L. rvilliford
to Mr. John D. McCall, General Counsel for the Brazes River Con-
servation & Reclamation District, this department said;
     "You further comment upon the fact that the revenues col-
     lected by the Board of rtaterEngineers under Article 7533
     are deposited in the State Treasury, to the credit of the
     general revenue fund. Likewise under the provisions
     of the-most recent Act of the Legislature directly affect-
     ing the Brazes River Conservation and Reclamation District
     (Chapter ,368,Acts of,the First Calle'd~Sessionof the
     Forty-Fourth Legislature) any,profits made ul'timatelyby
     the district are to be paid into'the general revenue fund
     in the'Treasury of the State of Texas.
     "I am of the opinionthe fees ~required under Brticle 3572,
     Revised Civil Statutes of Texas, 1925, are not required of
     the Braz.osRiver Conservation and Reclamation District, and
     you are so advised.    '1
                                            :,
These lasttwo quoted opin~ions,indicate~ an answer to ,this ques-
tion, but.before relying on them; we must consider~an opinion
written by Mr. EugenecTate .to~Mr. A.:H. Dunlap,~Member Board of
Water Engineers, on May 13, 1938, in which this department held
that the Board of ufaterEngineers.should charge the Upper Red
River Flood Control and Irrigation Distric,tthe usual filing
fees, and said:
     " ..ithe opinion of March g, l&8: written by Nr. H. L.
     dilliford.and addressed to John 6. McCall presents a dif-
    ,,
     ferent situation from the one ~out:linedin your inquiry.
     The conclusion reached ,byMr. Williford in this opinion was
     predicated on the fact that Section 6, of Article'81Vf pro-
     vides in substance that the net revenue derived from the
     operationof the Braxos.!RiverConservationand Reclamation
     District shall be paid~into the general fund of.the.State
     of~Texas. i This ,provision,it appears.to the writer, in
    ,effecf~places the.Braeos driverDistrict in the same catagory
     with the project.of the Oame, Fish and Oyster Commission
     referred to in Mr. Stone's opinion of June 30, 1925.
      "There being no provision.in theespecial act of the legis-
   ., lature which,,created.
                           the Upper.Red River Flood Controlsand
      Irrigation District which'allocates the net revenue derived
      from the operation of said district to any state fund, it
     Hon. John M. Pritchett, Page:3   O-76


          is the opinion of the writer that this district is liable
          for the statutory fees provided in Article 7532 Revised
          Civil Statutes, and that required in Article 7497."
     b$Je
        do not think that this opinion is in conflict with the first
     two opinions from which we quote above. This last opinion,
     written by Mr. Eugene Tate, indicates that it required the govern-
     mental agency in question to pay the fees because its revenues
     did not go into and come out of a State fund, whereas, the govern-
     mental agencies involved in the other two opinions quoted were
     such that their revenues did go into and come out of a State fund.
     bVethink,that this is a reasonable distinction, and that we
     should follow it.
     The State Parks Board is created by the terms of~krticle 6067 of
     the Revised Civil Statutes of Texas, which provides for a board
     of six members who "shall serve without compensation..'(.'However,
     a provision is made with reference to revenues in Article 6070a,
     which provides in part as follows:
          "Sec. 1. The State Park Board ishe~reby authorized to
          grant concessions in State Parks and'to make concession con-
          trac,tsfor any causeway, beach drive or other improvements
          in connection with State Parks sites, wherever feasible.
          The revenue thus earned by the State Parks Board shall, when
          collected be placed in the State Treasury....
         Vet. 2. The funds and revenue dre'ivedunder the provisions
         of thisAct and deposited in the State Treasury shall be
         deposited in a Special Fund to be known as the 'State Parks
         Fund', and the State Treasurer is hereby authorized Andy
         directed to designate such Fund accordingly and carry on his
         records a separate account therefoG and not exceeding One
         Thousand ($l,OOO;OO) Dollars per year is hereby appr,opriated
         by the Legislature of Texas out of said Fund for the payment
         of'the traveling and contingent expenses of the members of
         the State Parks Board which have been necessarily incurred
         in the performance,of their duties."
     iVJe
        think that this clearly shows that the revenues.of the State
     Parks Board go into'and come out of a State fund; and therefore
-.   it falls in the class of the governmental agencies referred to
     in the first two opinions quoted as far as charging fees are con-
     cerned.
     p/eadhere to the former opinions of"this Department, quoted above,
     and hold that the Board of Mater Engineers should not cqllect the
     usual,filing fees from,the State Pa'rksBoardswith reference to
     the building of dams and the impounding of water.
Hon. John W. Pritchett, Page 4   O-78


                                             Yours very truly
                                        ATTORNEY Gi3NERALOF TEXAS


                                        BY    Carl C. Rotsch
                                              Assistant
CCR:N
APPROVED
     GERALD C. MANN
,ATTORNEYGENERAL OF TEXAS
