                'THE    ATITORNES               GENE&U
                             OF   -XAS
                         AUSTIN.TEXMS          78711
~~WWORD   c. MARTIN
  *Fro-   alga&
                              September 9, 1970

     Hon. Dorsey B. Hardeman             Opinion No.     lvL6a7
     Exeoutive Director
     Texas Water Rights Connaission      Re:     Authority of Texas Water
     SamHouston Office Building                  Rights Commission under
     Austin, Texas   ~70711.                     Article 7542a,.V.C.S.,
                                                 to conduct.statutory
                                                 hearinga by and through~
                                                 a duly authorized hear&
     Dear Senator Hard-an:                       ing examiner.
          you have requested our opinion in answer to the following
     questions
              "Isthe-Texas Water Rights Commission
              authori'xedor empowered under the pro-
              visions of.Art. 7542a, V.C.T.S., to con-
              duct statutory hearings;such as on late
              filed claims and petitions and adjudi-
              cation,proceedings, by.and through a duly
              authorized hearing examiner for its sub-
              se+ent consideration?"
          Your attentionis invited to Section 9, of Art. 7542a which
     provides for the notice and procedure for taking evidence in all
     proceedings under the Water Rights Adjudication Act. This sed-.
     tionreads, in part, as follows:
               "Sec. 9 Notice of any hearing or other
               proceeding :orderedby the.Comr$ssion.
               pursuant .to,thisAct shall be given in
               the,,mannerprescribed in the Rules and
               Regulations of theCaPmissiOn Unless
               otherwise specifically,provided.for in
               this Act. In any proceeding in any part
               of the.state, the~Commission.shall~have
               the power to take evidence, including
               the testimony of witnesses: to administer
               oaths; to issue subpoenas and compel the
               attendance of.witnessesi
                                   ****




                                        -3305-
Hon. Dorsey:B. Iiardeman,page 2    (M-687)

          "The evidence may be taken.by a duly
          appointed reporter before the Commission
          or its authorised,representative who also
          shall have the power to.administeroaths."
          (Emphasis added)
      In the exercise of administrative duties required of the
Texas Water Rights.Commission pursuant to Article 7542a, includ-
ing matters of ,late.filingor the public hearings required tQ
lay out the preliminary Andyfinal determinations, persons desig-
nated by the Commission (whether legal , engineering or otherwise
qualified)~,-may'hold&e.p.ublic.hearings so.long as transcripts
of'the evid.enQe:atthe former hearings are available,to the Com-
missioriwhen~it acts on such reports , and~provided-such examiners
prepare ,a report with recommendations~before the Commission acts
to make ,a'decisionrequired of.,itunder Article 7542a. Wagnolia
Petroleum Co..v. Railroa?i'Commission,~~~~.2~~S.W.2d~230;
                                                        (Tex.Civ.App.
n39, error dism.; jud. correct);.2 Am.Jur.2d 50, Administrative~
Law, Sec.'221; 42 Am.Jur; .387;'.Public.A.dministrativeLaw, 'Sec.
73:7~;g~vcQ~~t~.e     States, 298 U.S. 4~68,'481 (1935). The Corn:
                      the evidence and arguments
                                         .        in the record and
make'adecisioxi without actually conducting the hearing; Varian's
Estate vl Comtnissioner,393.,F.2d75,3 (9th Cir. 1968),.cert.,den..
-U.S.     962.
     The 'decision-making,".mus't
                                be:done by Texas Water Rights
Commissidn.based on cqnsideratiQn.of the available,record'and
withor without conference or.oral.,discussionwith the hearing
examineri This is made'plainby the Magnolia opinion, supra.'.




          examiner's written memorandums, the examiner
          took the matter up withthe Commissioners
          and disouesed.it orally.'




                               -3306-
Ron.~Dorsey B. Hardeman, page 3      (M-687)    .

     Even where the statutes relating to Texas Water Rights Com-
mission-are silent on the subject of use of~examiners to conduct
hearings and take testimony, this right of your State agency to
use examiners is an "implied powe~r-@',-because
                                             of the nature and ex-
tent of the statutory duties of Texas Water Rights-Commission.
These are so Complex, manifold ,ana voluminous that they 00uia not
be expected to,be performed personally by the three Commissioners
h&z;;g 2    offices which make up the agency. Shreveport En-.
      g   ., Inc. v. U.S., 143 F.2d 222, (5th Cv.
8    323 U.S. 749, r-n.     329 U.S. 815); Krug v. Lincoln
N%onal   Life, 245 F.2d 848 (5th Cir. 1957); Anderson v. Grand
River Dam Authority, 446 P.id 814 (Okla.Sup. l-          ex-nt.
article outlining insdetail the procedure used throughout past
years by the Texas Railroad Commission is found in 18 Southwestern
Law Journal 406, "Practice and Procedure in Oil and Gas Hearings
in~Texas)" by Greenhill,and McGinnis. Texas Water Rights Com-
missioners in their consideration of the case are not confined
to evidence actually brought out at the examiner's hearing, and
can rely upon information disclosed by the Commission's office
records. Phillips vi Brazosport Savings & Loan Association,
366 S.W.2d 929 (Tex.Sup., 1963, appeal dism. 375 U.S. 438)..
    'The rule allowing use of examiners is also found in 2
American Jurisprudence, Administrative Law, Section 407, w3es
217-18, ae follows:
         "Neither does due process of law or the
         concept of.a 'fairor a full hearing re-
         quire that the actual taking of testi-
         mony be before the same officers as are
         ~to determine the matter involved. Whether
         or not expressly authorized by.statute,
         it is permissible and does not render a
         hearing inadequate or unlawful; for an
         administrative agency to employ the panel
         method of hearing inwhich one or more Of
         the members~ oftthe agency takes the testi-
         mony in the matter before the agency, or
         to employ motherpersons such as an exa-
         ner , investigator, or referee, to obtain
         the evidence and conduct the hearings,
         and make a report to the agency upon.which
         the agency makes its decision. Such pro-
         cedure is a practical necessity".




                                  -3307-
Hon. Dorsey B. Hardeman, page 4     (M-687)

     see also Younger Bros., Inc., v. U.S., 238 Fed.SuPp. 659
(5th Cir., 1965)ge
                t.                   60616,    Sec. 7; Dan M..
Creed, Inc., v. Tynan, 151 corm.. 677, 202 A.2d 239 (1964).


                        SUMMARY
                        -__----

          Texas Water Rights Commission may employ
          the examiner method of procedure under
          Section 9 of the Water Rights Adjudication
          Act. This power to use examiners is fur-
          ther implied in all 'proceedingsby the
          Commission where the statutes are silent
          as to use of an examiner.




Prepared by Roger B. Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, CO-Chairman
Linward Shivers
Roland Allen
Bennie Bock
Tom'Bullington
MEADE F. GRIFFIN
Staff Legal Assistant
NOLAWBITE
First Assistant




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