                               AUSTIN       11. TEXAS
                                                             I
                                                                 11,
                                                                  rcr!ld   by&k&        L
                                  March 2,       1953               .~__..-.~-_------



Hon. H,. A. Beckwlth                            Opinion    No. S-14
Chairman
Board of Water Engineers                        Re:     Disposition    of deposit
AUStin,  Texas                                          for COBts made with the
                                                        Board of Water Engineers
                                                        under authority    of Artl-
                                                        cle 7880~21, V.C.S.
Dear Sir:
              Your opinion    request    asks for Interpretation
of Article     7880-21,   V.C.S.,     a portion  of which reads                         as
follows :
              II
                   9   A petition
                       .   .            to be filed     with said
      Board must be accompanied             by a money deposit
      of Two Hundred and Fifty             ($250.00)    Dollars    to
      pay all costs which may be Incurred                In such
      proceedings:      After     the payment of such costs
      any unexpended       balance      must be repaid       to petl-
      tloners,     or to their       attorney     of record,     whose
      receipt    therefor     shall     be sufficient.        . q 0”
             The article    further   provides    that when an appeal
Is perfected     from the Board’s     decision,     “the party ap-
pellant   shall    pay the actual    cost of the transcript     of
the record,     which shall    be assessed     as part of the costs
Incurred    on such appeal.”
              Your letter,              after   quoting     said      statute,      reads
as follows:
               “In processing  applications     for the
      creation     of water control     and Improvement
      districts     under said statute      and under Artl-
      cle 788&3a,       VACS, we would like your op-
      inion In answer to the following          questions:
I




Hon. H. A. Beckwith            - page   2 - S-14
                                                                             .   .I




                  “1.   In computing     the ‘costs which
                          ay be incurred      In such uroceed-
                        &ggl     In each case wherein       a petl-
                        tlon is made under the above statute,
                        can this Board figure        In the time
                        of Its employees       In the handling       of
                        the petition,      the time spent by the
                        Board members and any other expenses
                        of this office      relative   to the pro-
                        cessing    of said Individual      petition?
                   2.   If so, can the money thus paid out
                        of the cost deposit     by the Board to
                        Itself  be expended by the Board as lo-
                        cal funds,  or must same be placed       In
                        the general   revenue   fund of the State
                        at the conclusion     of the proceeding?

                   31   If such money constitutes         local  funds,
                        may the present     procedure     of placing
                        these funds In a local        bank be con-
                        tinued,  and can the Board make expen-
                        ditures  therefrom?
                   4.   For what specific       purposes may the
                        Board expend the       money thus received?

                   5.   Can we compute and collect    our costs
                        agalns t the co8 ts deposits  now on hand
                        which have not been returned?
                “For many years,       the Board of Water Engineers
         has returned        this deposit,     except    for actual    exL
         penses of travel         and other items Incident          to the
         Investigation        of the district,      which have been de-
         ducted and paid on sworn accounts               In the same
         manner and with the same detail              used In present-
         ing claims       agalns t appropriated       funds.    The new
         proposal      has been suggee ted by one member of the
         Board,’ and your opinion          Is desired      as to the pro-
         cedure to be followed          In connection       with the
         handling      of the deposit.”
                  In Moore v. Sheooard,   144 Tex. 537, 192 S.W.2d 559,
    561 (1946))     the following  Is said concerning  official  fees?
                “That the fixing         of official     fees la a
         matter   of general       legislation,      and Is a ‘sub-
         ject’ of general        legislation      within    the mean-
         ing of Article      III,     Section    35, above, cannot
Hon. H. A. Be&with          - page    3 - S-14



      be quea tioned 0 There are many such
      enactments        in our statutee.        These
      statutes       halre been 8 trlctly      construed
      against       allowing    a fee by impllcatlon,
      as regards        both the fixing      of the fee
      and the officer         ent,itled   thereto.
      McLennan County v. Boggess,              104 Tex. 311,
      137 S.W. 346. . . And In State               v. Moore,
      57 Tex. 307 . . . Mr. .Justlce             Stayton
      said:      ‘It 5s not believed        that any well
      considered        case can be found In which a
      public      officer    has been permitted         to col-
      lect     fees unless      the same are vrovided
      for.     and the amount thereof          declared    by
      &f. f,w (Emphas Is added. )
                  To the same effect, see McCalla v. City of Rock-
&Q=, 112 Tex. 209, 246 S .W; 654~ (1922); ,Nueces County v.
;;;;l;$;;;.;391;;;1          297, 162 S .W.2d 687 ,‘(1942) ; 9 Tex. Jur.

              In the second paragraph            of Article      7880-21,
V.C.S.,    provision       Is made for a charge for a transcript
of the record       In the event of an appeal.              This article
deals with water control             and Improvement      districts     0 The
general    fee statute       undgr which the Board of Water En-
gineers    operates      is Article     7532, V.C.S.        The fee schedule
set out In that article            is self-explanatory.           These artl-
cles are the only statutes             authorizing      a charge to be made
In connection       with the creation         of a water control         and
improvement      dls trict;     and where no appeal Is taken,              Artl-
cle 7532 alone is applicable.               It makes no provision
for a charge for time spent by Board members or employees,
and hence none can be made.               The only office        expenses
authorized      to be charged agalns t the petitioners               t deposit
are those specifically           Itemized     In Article      7532, plus,       In
the event of an appeal,            the aforesaid      transcript      fee.
             It follows    from the above that Items of travel
and Investigation      expenses    referred    to In the la8 t para-
graph of your letter       may not be charged        against    the de-
posit.    Article    7490, V.C.S.,      states   that travel     expenses
shall   be received    “from the State,”       and provision       there-
for Is made for your agency In the general               appropriation
bill   for the current     biennium.
              Your second and third  questions are governed
by Article     7533, V.C.S., which reads as follows:
                                                                                     .. . ,

Hon. H. A. Beckwlth           - page    4 - S-14


               “The fees and charges       collected     In
       accordance     with the provisions        of this
       chapter    shall   be Immediately      deposited     In
       the State     Treasury    to the credit      of the
       general    revenue     and full  and detailed
       verified    monthly     and annual reports       of all
       such receipts,       as well as of the expendl-
       tures    of the said Board, shall         be filed
       with the Comptroller         of Public ACCOUntS.”
            It Is clear  from this article   that fees earned
under Articles   7532 and 7880-21 must “be Immediately     de-
posited  in the State   Treasury  to the credit   of the general
revenue”   and cannot be expended by the Board as local
funds.
               Article     7880-21 provides            that after     payment
of costs,      the unexpended         balance      Is to be returned        to
petitioners       or their      attorney      of record.        Since the
amount of the costs cannot be finally                      determined    until
the conclusion         of the proceeding,            the refund should be
made Bt that time.            If you have on hand any deposits
made under Article           7880-21, concerning            which the pro-
ceedings      have been finally          concluded,        you should deduct
from such deposit          the earned        fees,     as above stated,        and
deposit     same In the State          Treasury        to the credit      of the
general     revenue,     refunding       the balance        of the deposit
to the petitioners          or their       attorney       of record.
              The conclusions           herein  expressed   deal on1
with   deposits   made under           the authority    of Article 7880-21.


                                     SUMMARY

                       The Board of Water Engineers               may
               deduct from the deposit        made under
               Article    7880-21, V.C.S.,     only the           fees
               or coats specifically       Itemized   In          Artl-
               cle 7532, V.C.S.,      and the transcript               fee
               provided    In Article   7880-21 In the             event
               of an appeal.      These fees or coats              when
Hon. H. A. Beckwith       - page   5 -~S-14



            earned cannot be expende,d by the
            Board as local        funds,   but they must be
            deposited      Immediately     in the State
            Treasury     to the credit       of the general
            revenue . At the conclusion            of the
            proceedings,       the balance     of ‘the deposit
            should be refunded          to the petitioners
            or their     attorney     of rec,ord.
APPROVED:                            Yours     very   truly,
Jesse P. Luton,     Jr.              JOHN BEN SHEF’PERD
Land Dlvls Ion                        Attorney General
Wlllla   0. Oresham                                                  c
Reviewer                                       lJ5Lzzd&
                                    BY    -
Robert S. Trottl                      8   J.    Arthur     Sandlln
First  Assistant                                         Assistant
John Ben Shepperd
Attorney .General

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