Honorable R. M. Dixon, Chairman                 Opinion No. WW-188
Board of Water Engineers
Austin, Texas                                   Re:   Exemptions    from payment of
                                                      statutory  fees by applicants
                                                      before the Board of Water
                                                      Engineers;   and Board authority
                                                      to use part of $250.00   money
                                                      deposit for travel and ink-e,&-
Dear    Sir:                                          gation expenses.

                We quote from    your request     for an opinion as follows:

                 “Attorney General’s      Opinion No. V-803,    dated April 4,
           ‘1949, discussed    at great length the fees that need not be
            paid to the Board of Water Engineers        by public agencies
       - . such as the Brazes River Authority,         Lower Colorado River
       : I’Authority, Upper Colorado River Authority and others.            This
        “. Opinion No. V-803 referred        to past opinions of the Depart-
            mentand    overruled two of them, holding in effect, as we
            interpret it,, that Districts  established   pursuant to Section
            59. Article XVI of the Constitution      are created to accomplish
            a publtc purpose and should be exempt from paying fees to
            the State.                                                  L”

                 ‘As you know, many river authorities        covering entire
           watersheds,    and special districts    covering more limited
           areas, have been and will be created by the Legislature.
           In addition, water control and improvement         districts   and
           other types of water districts     are being and will be created
           by this Board, by County Commissioners’          Couits,    and, in
           rare instances,.by    the governing bodies of municipal corpora-
           tions (Article 7880-135,    V.C.S.).    Such districts   derive,thetr
           constitutional  authority from either Section 52 of Article III
           or Section 59 of Article XVI, although the latter is now the
           constitutional   authority most frequently employed.         Such
           districts  and river authorities     are tendering applications
           for water permits and presentations        which Articles     7532 and
Honorable     R. M. Dixon,   Page   2 (WW-188)



        7497, respectively,   require shall be accompanied     by certain
        specified fees.   Quite naturally, the representatives    of these
        agencies raise the question of their liability for payment of
        statutory fees.

             “Based upon the foregoing,          your opinion is respectfully
        requested as to the following:

        “1.    Are all river authorities  and the various types of
               water districts created by the Legislature   exempt
               from the payment of all statutory fees required to
  .,           be collected by this Board for the benefit of the State7
               If not, please list those which are not exempt.

        “2;    Are  water districts  created by lawful means other
               than by the Legislature   exempt from the payment
               of all statutory fees required to be collected by
               this Board for the benefit of the State?

        ‘3.     Are municipal corporations,    when acting in the pub-
                lit interest to develop a water supply, exempt from
                the payment of all statutory fees required to be col-
               alected by this Board for the benefit of the State?

        U4. Are     other political subdivisions   of the State such as
               county governments     and soil conservation   districts,
               when applying for water appropriation      permits or
               tendering presentations     having as their object the
               conservation   and development    of the water resources
               of the State for public purposes,    exempt from the pay-
               ment of all statutory   fees required to be collected by
               this Board for the benefit of the State 1

               .“In view of the fact that briefing the above-raised    issues
          will require a complete study of the question of fees collected
          by this Board, we also request a re-analysis       of Attorney
          General’s    Opinion No. S-14, dated March 2, 1953, in which it
          was determined that the $250.00       deposit paid as required by
          Article   7880-21  could not be used except for certain designated
       :: purposes.     Board policy now requires an investigation      of the
          areaseeking     creation of a water control and improvement
Honorable   R. M. Dixon,   Page   3 (WW-188)




        district.   Is it still the opinion of your office that none of the
        $250.00    money deposit can be used for travel and investigation
        expenses necessarily       incurred in proceedings   to create such a
        district?”

             The question of payment of fees to the Board of Water Engineers
by governmental   agencies has been reviewed in many prior opinions by this
office. A brief summary of each opinion is as follows:

              1. Letter opinion dated June 30, 1925, addressed     to the Game,
Fish and Oyster Commission,      decided that the Commission    need not pay the
statutory fees in order to acquire a permit to appropriate water for the
purpose of maintaining a game preserve     and fish hatchery.    The basis of the
opinion is that since game, fish, water and permit fees are all the property
of the State, and since the fees statutes do not expressly   require the Commis-
sion to pay the fees, none need be paid.

             2. Letter opinion dated January 3, 1938, addressed to the Board
of Water Engineers   decided that the Federal Farm Security Administration
had to pay the .mandatory fees since the fees were not taxes so as to forgive
payment thereof by the Federal Government.

               3. Letter opinion dated March 8, 1.938, addressed      to the Braeos
River Conservation     and Reclamation   District, holds said district exempt
from the fees in question.    This hold’ing is based on the fact that “the entire
enterprise   is an undertaking by the State to conserve    its public waters and
to utilize same for the benefit of the State in its entirety . . . the fees are not
required.”

              4. Letter opinion dated May 4, 1938, addressed     to ,Upper Red
River Flood Control and Irrigation    District holds such district not liable for
the fees.  This opinion pointed out a,gain that the district was a State agency
exercising  powers~ and privileges  in furtherance  of governmental   pmposes
and in addition stated that one department of government     is not required .to
pay another department a license or privilege tax since this would be merely
paying the revenue of the State into the revenue of the State.

             5. Letter opinion dated May 13, 1938, addressed     to the Board
of Water Engineers,   overrules the opinion of May 4, 1938, and ,holds the
Upper Red River Flood Control and Irrigation    District liable for the fees.
Earlier opinions were reviewed and the Game, Fish and Oyster Commission
and Brazes District opinions approved.    The Brazes opinion was approved
Honorable   R. M. Dixon,   Page 4 (WW-188)




on the basis that the net revenue of the Brazes District ultimately find
their way into the General Revenue as do the fees collected by the Board
of Water Engineers.    Because the Upper Red River District’s     Act did not
contain this net revenue provision,  it was held liable for the fees.

             6. Opinion No. O-78 dated January 13, 1939, addressed     to the
State Parks Board, holds such Board not liable for the fees.    This opinion
reviews all prior opinions and adopts as its basis the above indicated fee
theory whereby such Board need not pay the statutory   fees, since its revenues
go into and come out of a State fund.

              7. Opinion No. o-4304,   approved February   9, 1942, addressed
to the Lower Colorado River Authority, holds that that Authority is not
liable for payment of the statutory fees.    The opinion was based on the in-
ability of the Authority to spend its funds for any but a statutory purpose.
It decided that the Authority acquires no right through such a permit, since
its right to appropriate was conferred by its act, and that payment of the fees
in order to secure a permit would be use of its funds for a non-statutory     pur-
pose.   The earlier  opinions on this subject were not discussed, even though
neither the Upper nor Lower Colorado Acts contain a provision whereby net
revenues go into the General Fund.

            8. Opinion No. O-7338, approved August 9, 1946. addressed    to
the Upper Colorado River Authority,   reached the same result and for the
same reason as that set forth in Opinion No. O-4304 above.

               9. Opinion No. V-803,   approved A,p ril 4, 1949, addressed   to
the Board of Water Engineers,     reviews all prior opinions and withdraws
Opinion No. O-4304 and Opinion No. O-7338, which had held that the Authori-
ties acquired no right through a permit, since their right to appropriate       was
conferred by, the Acts creating them.     This opinion holds that the Colorado
Districts   are exempt from payment of the statutory     fees even though no pro-
vision in the Colorado Acts provides for turning net revenues       to the General
Fund, as provided in the Bravos Act.      The basis of the opinion was that the
Colorado and Brazes Districts     were created pursuant to Section 59, Article
XVI, of the Constitution,  and under no circumstances      would they be authorized
to produce a profit over and above constitutional     and statutory  costs, therefore,
no distinction should be made.

             We have carefully  studied the prior opinions on this subject and
are unable to agree with the conclusions  reached by them as to exemption
from payment of statutory fees by certain governmental     agencies.
Honorable   R. M. Dixon,   Page   5 (WW-188)




               The fees required by Article 7532 and Article 7497 are manda-
tory, and like all mandatory fees, they must be collected by the Board from
each applicant, unless such applicant is expressly     exempt.   NO exemption
whatsoever    is provided under Article17532  or Article  7497, and none can be
read into the statute.   No mention of exemption from payment of fees is found
in the Legislative   Acts creating the various river authorities  and water
districts, nor is authority for such an exemption found in Section 59, Article
XVI, of the Texas Constitution.

              The Legislature  can provide for an exemption as to payment
of certain statutory fees by governmental    agencies and often has enacted
such a~provision.    An example of this is found in the Fee Enumeration
Statute, Article  3913, which provides:

              -. . ., provided neither of said officers  shall demand
        nor collect any fee from any officer of the State for copies
        of any papers, documents or records in their offices,       or
        for any certificate    in relation to any matter in their offices,
        when such copies are required in the performance         of any
        oft the official duties of such office.   . . .”

              We are of the opinion that since no such exemption was provided
as to feesof   the Board of Water Engineers,     the Board must charge and col-
lect-for the benefit of the State all of the fees provided for under Article 7532
and Article 7497, V.C.S.,   irrespective   of who the applicant may be, including
river authorities   and water districts  created by Legislative  Act or under
statutory proceedings.    We therefore    withdraw Opinion No. O-78, and Opinion
No. V-803,   and the prior letter opinions and substitute instead this opinion.
                                                                   .
              With reference    to your request that this office reconsider
Attorney General’s     Opinion No. S-14, dated March 2, 1953, we wish to advise
you that it is still the opinion of this office that no part of the $250.00  deposit
paid as required by Article 7880-21      can be used for travel and investigation
expenses incurred in the investi,gation of an area seeking to create a water
control and improvement    district.    Such expenses can only be incurred    under
authority of Article 7477(10),  V.C.S.,   which provides:

             “The members,    Chief Engineer,   and other employees
        of the Board shall be entitled to receive from the State their
        necessary   traveling expenses while traveling on the business
        of the Board, upon an itemized statement,    sworn to by the
        party who incurred the expense, and approved by the Board.”
.




    Honorable    R. M. Dixon,   Page 6 (WW-188)




     The Appropriation   Bill passed by the last session of the Legislature,
    ~Vernon’s Texas Session Law Service,     1957, p. 1085, provides the sum
     of $25,000;00  for each of the next two years for payment of such ex-
     penses by the Board.

                                       SUMMARY

                  All applicants,   including governmental    agencies,  must
                  pay the statutory fees required under Article 7532 and
                  Article   7497, V.C.S.   The Board of Water Engineers
                  may not use any of the $250.00      money deposit required
                  under Article 7880-21,     V.C.S., for travel and investi-
                  gation expenses incurred in the investigation      of an area
                  seeking to create a water control and improvement
                  district.

                                                   Very    truly yours,

                                                   WILL WILSON
                                                   Attorney General       of Texas




                                                   BY
                                                          Edward A. Caeares
    EAC :tiw                                              Assistant

    APPROVED:

    OPINION     COMMITTEE:

    H. Grady    Chandler,   Chairman

    James   N. Ludlum

    REVIEWED   FOR THE ATTORNEY            GENERAL
    BY: Geo. P. Blackburn
