                                           January    9,    1968




Hon. Hugh C. Yantie,        Jr.                      Opinion NO. M-186
Executive   Director
Texns Water Quelity        Board                     RI?:   Under the Texas Weter Quality
1108 LAVACA Street                                          Act, whether the Texas water
Austin,   TeWe                                              QuAlity Board may prescribe
                                                            fees to be charged for copies
                                                            of documents     filed   with the
                                           .._              Board. end adoit rules and
                                                            regulations     authorizing   the
                                                            distribution     of free copies
                                                            of such documents to persons
                                                            affected     by the proceedings
                                                            of the Board,

Dear Hr.   Yantisr

      You request       our opinion   AS    to the following       questions:

             i.    M8y the Texas Water Quslity        Board, pursuant    to
                   the rule-making,powers      in Section    8 and the pro-
           . .     virlona ~of~SeeC~on~~10-~c~,,~exas~Water~Qua1~ity-~~~    .
                   Act, prescribe    the fees to be charged for copies
                   of mepe, pepcrs or documents filed         with the Bokrd?

             2.    If   so, do these provisions    give the Board authority
                   to adopt rules authorizing      the distribution of free
                   copies   of such maps, papers or documents to persons
                   affected   by proceedings    of the Board?

       In answer to your first     question,    we observe   that Section     8 of the
Texas Water Qmlity       Act of 1967, Acts 60th Legislature,         Regular Session,
1967, Chapter 313. page 745; (Art.         7621d-1,  Vernon’s    Civil   Statutes),
provides    a broad rule-making    provision    which directsthe       Board to “adopt,
prescribe,    promulgeta   and enforce    rules and regulations      reasonably     re-
quired to effectuate      the provisions     of this Act* . .‘I     In 80 doing,      how-
ever,    the Board is not authorized      to adopt rules and reguletions        which




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        tllon. Hugh C. Yantis,     Jr.,   pa.@   2 (N-186)


        are contrary     to other statutory     directives.       1’Tex.    Jur. 2d 656-7,
        Administrative     LAW, Sec. 11, and cases cited          therein.      Therefore,   your
        first   question   is answered in the AffirmAtive.            However, these rules
        and regulations     cannot be La conflict       with the general        fee statute,
        Article   3913,   Vernon’s  Civil   Statutes,     hereinafter      quoted in part.

                In support of your second question,         you atate that, the depart-
        ,mental constructton    of Section     10(c)  of the Texas Water Quality      Act
         is that the @oard,has     been given rhe authority         to prescribe  fees for
         co,pies of materials    in tts files,     and that the change in language       in
         the new section    is deemed sufficient      authority     to remove any doubts
         concerning   the Board’s   power to define      situations    wherein no fees
         would be charged for copies.        Section    10(c)   reads As follows:

               “Subject    to the limitations       imposed in Section       21, upon
               application    of Any person and “non payment of the fess,                  :
               if Any, prescribed       therefor    in the rules And reaulations
               of the Board, the Board shall          furnish    copies,  certified    .
               or otherwise,     of its proceedings        or other official      acts
               of record,    or of any map, paper,         or document filed      with
               the Board.     Certified     copies   under the h8nd of the’chair-
               man or the Executive       Director    and the seal of the Board
               shall be admissible       in evidence     in any court or adminis-
    .          trAt&ve proceedings       in the same manner and with like ef-                       .
               fects   as the original      would bye.”      (Emphasis added.)
                                                               ~A..
               The general    fee statute      for officers     of the State and heads of
        BtAte Departments       is Article     3913, Vernon’s      Civil Statutes.     It pro-
        vides,    in part,   that:

              “EAch officer   named Above And all other officers      of the
              state and heads of state departments      shall CAUSe to be
              collected   the following    fees for the services   mentioned,
              except AS otherwise     provided  by law:   (Emphasis added.)



               (Herein   follows   an enumeration       of   certain   fees   to be collected..)

               You also suggest     in your letter     that underthe      old provision   which
        was Section     3(k) of the Texas Water Pollution         Control    Act, your Agency
        deemed itself      to be bound by Article      3913, but that now, the inclusion
        of “G 2 It in Section         10(c)  of the TeXAA Water Cuality        Act brings  your:
        agency within      the “except    AS otherwise   provided   by law” exception     to
        Article   3913.     We do not believe     that there is any merit in this conten-
        tion.




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Hon. Hugh C. Yantis,        Jr.,   page    3 (M-186)


      Article    3913 is a specific    statute  relating     to fees to be charged
by certain    officers   "and all other officers      of the state and heads of
state departments".        In order for us to hold that you are exempt from
this lawi we must first       conclude  that Section     10(c)  constitutes a spe-
cific  ex&nption.      This we are unable to do.

        The fact that an act contains      one or more exceptions     discloses     an
intention    on the part of the Legislature       that there should be no other
exception,     and that the act should apply in all cases not excepted.
53 Tex. Jur. 2d 209, Statutes,        Sec. 143, and cases cited      therein.     Arti-
cle 3913 contains      an exception   which allows othe,r state officers        and
agencies    to receive   free copies,    but said article   requires   a fee'to     be
collected     for copies   to all others.

       Justice   Walker,    speaking      for   the Supreme Court    of   Texas   in 1962,
stated:

      "A statute    may be repealed    expressly   or by implication.    Where
      a later enactment is intended        to embrace all the law upon the
      subject   with which it deals,     it repeals    all former laws relating
      to the same subject.       Repeals by implication     are not favored,
      however,   and laws relating     to the same subject     should be con-
      sidered   as though incorporated      in the same act.     If they can be
      harmonized and effect      given to each when so considered.      there
      is no reoeal    by implication".       (gmphasis added.)    Gordon v.
      a,      163 Tex. 392, 356 S.W.2d 138 (1962).

Therefore,   in the absence of an express    repeal by statute'and   where
there is no positive    repugnance  between the provisions    of the old
and new statutes,    the old and new statutes    must each be harmonized
and construed   so as to give effect,    if possible,  to both statutes.
Winterman V. McDonald, 129 Tex. 275, 102 S.W.2d 167 (1937).

        Certainly    in this instance,       both Article     3913 and Sec. 10(c) of
Art. 7621d-1 can be construed             in harmony with one another.           It appears
that inclusion       of the words "if any" in Section            10(c)   refers    to and
constitutes      an affirmance      of the legislative       intention    set forth     in
Article     3913.    This intent would evidence          that the statute       means that
in some circumstances         (i.e.    other state officers),        a fee will not be
charged,     but in all other instances,          fees are required       to be collected.
Such a construction        is in keeping with the time-honored              rule that re-
peals by implication        are not favored.         St. Louis,     B & M RY. v. Marcafich,
221 S.W. 582 (Tex. Comm. App. 1920); Winterman v. McDonald, supra;
Grinnnett Y. State,       163 Tex. Crim. 148, 292 S.W.2d 633 (1956);                 and Inter-
national     Service   Insurance      Company V* Jackson,       335 S.W.2d 420 (Texx.
App. 1960, error ref.        n.+.e.).




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    Hon. Hugh C. Yantis,       Jr.,   page 4 (~-186)


            Therefore,      you are advised    that the Texas Water Quality        Board may
    adopt rules and regulations          relating   to the collection      of fees,    insofar
    as said rules and regulations           are consistent    with Article     3913.    Set tion
    10(c)    is not an exception       to Article   3913 and does not authorize         the
    Texas Water Quality         Board, by rules and regulations,         to distribute     free
    copies     of maps, papers or docureents contrary         to Article    3913.     See also
    Article     III,Section     52, Constitution    of Texas.


                                            SUMMARY

                 The Texas Water Quality       Board     may adopt rules ‘and regu-
          lations   relating    to the collection        of fees insofar  as same
          are consistent     with Article     3913,     V.C.S.,  The Texas Water’
          Quality Act does not authorize          the    Board, by,rules  and regu-
          lations,   to distribute      free copies      of maps, papers or docu-
          ments contrary     to Article     3913.

                                                     Veq      truly   yours,
                                                     ./‘;,i




                                                              ORD C. MARTIN.


    Prepared    by Fred E. Davis
    Assistant    Attorney General

    APPROVED:

    OPINION COMMITTEE
    Hawthorne Phillips,    Chairman
    Kerns Taylor,   Co-Chairman
    W. V. Geppert
    R. D. Green, III
    James Quick
    Jack Sparks

    STAFF LEGAL ASSISTANT
    A, J. Carubbi




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