                                                               -I
                    Auwl-rx.     TEXAl3        78711    .---
                                                       I
                      August    28,     1970




Hon. 0. F. Dent                       Opinion No. M- 674
Chairman
Texas Water    hta Commission         'Re: Several Questions con-
P. 0. Box 123                              cernlng filing and ad-
Capitol Station                            judicatlonof claims
Austin, Texas 78711                        under the Water Rights
                                           AdjudicationAct of 1967
Dear Judge Dent:                           (Art.7542a,V.C.S.).
      You have requested our opinion as to the correct
statutory constructionof Section 4 of the Water Eights
AdjudicationAct (Chap. 45, (S.B. 92), page 86 Acts of the
60th Leg., Regular Session, effective August 28 1967;
Article 7542a, Vernon's Civil Statute6 of Texasj.

     Section 4 of the Act reads as follows:
     ‘L(a) This Section applies to all claims of
           riparian water rights, all claims under
           Article 7300 R i d Ci 11 Statutes of Texas,
           1922 to imp%ndevd~~ert ir use public waters
           of tie state for'other than domestic or live-
           stock purposes for whLch no permit has been
           issued, all claims of water riuhts under the
           Irrigation Acts of 1669 and l&5!&which were
           not filed with the State Board of Water
           bngineers In accordance with the Irritation
           Act of 1913, as amended, and all other
           claims of water rights other than cla 6
           under permits or certified filing8.
     "(b) Any claim to which this Section applies
          shall be recognized only if valid under
          existing law 8nd only to the extent of
          the maximum actual applicationof water
          to beneficial use without wsete during




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Hon. 0. F. Dent, page 2, (M-674)




          On or before September 1, 1969, every
          person c1aim ing any weter right to which
          this Section applies shall file with the
          Commission 8 statement setting forth
          the name and address of the claimant,
          the ‘locationand the nature of the right
          claimed, the stream or watercourseend
          the river basin in which the right is
          claimed, the date of commencementof
          works, the dates and volumes of use of
          w,     together with such other lnforma-
          Thomas may be required by the Commission
          to show the nature and extent of the
          claim. Each claimant or owner shall be
          required to certify under oath that the
          statementsmade in support of his claim
          are true and correct to the best of his




          fore July 1, 1971. The Commission ahaY
          prescribe forms for the sworn statements,
          but use of Commission forms shall not be
          mandatory. On or before JanU8Iy 1, 1968,
          8nd June 1, 1969, the Commission shall
          cause notfce of the requirementsof this
          Section to be published once each week for
          two (2) consecutiveweeks in newspapers
          having general circulation in each county


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Hon. 0. F. Dent, page 3, (M-674)


           of the state and by first class mall
           to each user of surface water who has
           filed a report of water use with the




     "(d) The filing of all claims to use public water
          is necessary for the conservationand blest
          utilization of the water resources of the
          state; therefore, failure to file the sworn
          statement or statements with the Commission
          In substantial compliance with this Section
          shall extinguish and bar any claim of water rights
          to which this Section applies, 8nd thereafter
          no such right shall be recognized. !rhe
          sworn statements required by this Section
          shall be binding on the person submitting
          the statement and his successors in interest
          but ah811 not be binding on the Commission
          or any other person in interest. Nothing
          herein shall be construed to recognize
          any water right which did not exist prior
          to the effective date of this Act. This
          Section shall not apply to use of water for
          domestic or livestock purposes."
           (EmphssisAdded)
     By your question number 1, you ask whether subsection (a)
applied to or included intended use of water at some future
time and whether your Commission must recognize such filed
claims prior to adjudication.




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Hon. 0. F. Dent, page 4, (M-674)


     We have concluded that such filed papers 8re merely
what you have denominated them --- "claims,"and that before
these can be recognized by Tex8s Water Rights Commleeion,
each must be finally adjudicated so as to take Its place In
the files 88 an approprlatlveright to use waters of the
State along with the permits and certified filings. If by
"recognizing"such water right claims you mean to suggest
that Texas Water Rights Commissionm8y evaluste any one or
several claims for water prior to final conclusionof the
procedures provided for In Section 5 of the Water Rights
AdjudicationAct, we must advise that in our opinion such
cannot be done. This is necessarily so because a state,
agency m8y only exercise powers speclflcsllygrsnted to it
bv law or which are reesonablv necesearilr lmnlied from a
siecific grant of authority. -Ft. Worth &a&     Club v.
She ard 125 Tex. 339, 83 S.W 2d bbo 1935
*        NO. 2 v. Mann, 135 Tex. 286, $42 S!i.
The onlv Rower to sdjudicate is found in Section 5 of the
act, and therefore wk are of the opinion that It ls,,onl
in a Section 5 procedure that Texas Water Rights Comiii&ion
has the power to evaluate the merits of any claim filed under
Article 7542a.
     Under this Section 5, full provision Is made for
notices, hearings and adjudicationof claims to the use
of State-Ownedwaters, together with an appeal to the
Courts for confirmationthereof. Thls is a complete
procedure for all adjudicationsof the merits of a claim.
     By question 2 through 5, inclusive, you refer to the
provisions of the Water Rights AdjudicationAct (Art. 7542a)
and ask whether the Texas Water Rights Commlselonmay now
use a lack of evidence of beneficial use of water as a
reason for Texas Water Rights Commleslon to hold that
"extenustlngclrcumstsnces8nd good iZause"are not shown by
a claimant who now at a time after September 1, 1969) seeks
to file his claim o$ future intended use with the Commission.
As 8 corollary to this you Inquire whether the Commlsslon
may now review all clajms, both those timely filed and
those now offered for filing where "extenuatingcircumstances
8nd good C8uSe" 8re shown, with a view toward summary
rejection of those water right claims which do not show any
beneficial use of water between the calendar years 1963 and
1967, inclusive, or such other use period allowed by the law.


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Ron. 0. F. Dent, page 5, (M- 674)



     It is our opinion that Texas Water Rights Commission
may consider all sorts of evldentlarymatters which are
relevant to the tardiness of a claimant In filing hle clelm
late, but that final evaluation of such claims of water
rights where go-use     or extenuation for lateness in
filing Is shown must await final evaluation under Section 5
of the Water Rights AdjudicationAct. Texas Water Rights
Co~iSSiOn ha8 no power or duty t0 review  C18imS prSViOUSly
filed under this statute before September 1, 1969, without
holding a Section 5 adjudication. As to claims now offered
as "late" claims for filing with a plea of "good cause" to
excuse and extenuate the lateness of the submission,the sole
inquiry of the ConmIssion under Section 4 of the statute Is
to pass upon the validity of the excuse for lateness
alleged by such a tardy claimant. Thereafter, until final
adjudication, those who filed claims In time or were allowed
to file late must receive notices as to all water application
until the claim 1s finally held invalid. This procedure is
expressly provided for In Article 7509, Vernon's Civil
Statutes, which is a statute required to be construed in
pari materla with the Water Rights AdjudicationAct. To
hold otherwise and allow a more summary or different review
than that prescribed by the Texas Legislaturewould deny
to a claimant the due process notice and hearing safe-
guards which Section 5 Is designed to provide.
     This opinion does not prevent action by the Tex8s
Water Rights Commission to accelerate the sdjudicatlonof 8
stream or segment thereof either on receipt of a proper
appllcstlon therefor, or on its own motion, Nor is the
Commissionprecluded from seeking judlclal.reviewof any
Individualwater right In a court of law, since Article
7928 does not create a "primary jurlsdlctlon*in the Texas
Water Rights Commissionwhich would in effect, place
cancellationor ad.ludicatlon exclusively in the Commlsslon
to the exclusion of a court. Rarrington v. State, 407 S.W.2d
467 (Tex.Sup.1966). We do hold hereln that dmlnlstrative
review of the merits of a proffered water rlg:t claim by
Texas Water Rights Commission may only be accomplishedunder
the procedures set out in Section 5 of the Water Rights
AdjudicationAct, and that such a claim may not be finally
evaluated by administrativeorder in a different proceeding
or manner from that prescribed by the Legislature. As to
recognition of the filed claims, or of those now accepted
on "good cause" shown for lateness In filing, such purported

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       Hon. 0. F. Dent, page 6, (M-674)


      ~.claims must be given mail notices by Texas Water Rights
...    -Commissionprior to being finally adjudicatedunder the law.
                   '1.
                            SUMMARY
                            -------
            Texas Water Rights Commissionmay only pass on
            the Issue of whether good cause Is shown as to
            claims presentedunder the Water Rlghst Adjudi-
            cation Acts, whether such were presented before
            or after September 1, 1969. Final evaluation
            of all clsims on the merits must be accomplished
            pursuant to the procedures set forth in Sec. 5
            of Ssid Act. Claims now filed, or which are
            accepted hereafter and filed for good cause shown,
            are water rights entitled    notices by certified
            mail pursuant to Artlcl      J V.C.S. until
            finally adjudicated no        a water right.




        Prepared by Roger Tyler
        Assistant Attorney General
        APPROVRD:
        OPINION COMMITTEE
        Kerna Taylor, Ch8irm8n
        W. E. Allen, Acting Co-Chainnan
        Gordon Cass
        Linward Shivers
        A. J. Gallerano
        Tom Rullington
        MEXDE F. GRIFFIN
        Staff Legal Assistant
        ALFREDWALKER
        Executive Assist8nt
        NOM WHITE
        First Assistant


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