                               June 21, 1967                            ..,
                                                                        .4
                                                                          ;




Hon. J. D. Kirkland, Chairman      ’   Opinion No. M-98
Texas Water Well Drillers Board
Austin, Texas                          Re:   Whether a non-resident  appli-
                                             cant may be issued a license
                                             under the Texas Water Well
                                             Drillers Act.

Dear Mr. Kirkland:

      You have asked that this office  advise you on whether your Board
is empoweredto issue licenses   to drill water wella in ‘Texas to non-
residents by the Water Well Drillers Act (Article   7621e, Vernon’s
Civil Statutes).

      Section 3(a) of Article   7621e, Vernon’s Civil Statutes,   rtatea
in mandatory terms that “It shall be unlawful for any person to act
as or to offer   to perform services  as a water well driller   without
first obtaining a certificate    of registration in the wanner pre-
scribed herein and purruant to the rules of Water Well Drillers
Board. ”

      In Section 2, ibid, we find the only exceptions    to the mandate
of Section 3(a):   Section 2(d) excludes test holea for mines and
oil and gas wells, and Section 2(c) exempts from the licaneing re-
quirements anyone working on a drilling   rig under the direct super-
vision of a duly licensed driller   or a landowner drilling   a water
well on his own land for his own use.

     ~Section 3(c) sets forth the,provirion      that each applicant de-
siring to become a registered     driller,muet   submit an application
and an examination fee. Section       3(g) contains a “Grandfather Clause”
which expired August 31, 1966.       Section 3(h) provides that:     “Elfh’
applicant shall have been a resident of the State of Texas for not
less than 90 days ‘prior to makingapplication       for registration   as a
water well driller.”     (Empharie ad&d).      Here is the clearly   stated
intent of the Legislature    that  the Board is without authority to
accept an application    from an applicant who has resided in the State
for lers than ninety (90) consecutive days imediately         prior to SUB-
mitting his applicatfon.
Hon. J. D. Kirkland,    page 2,   Opinion No. (M-98)

      The residency requirement of Article  7621e is constitutionally
valid and such enactmant was a proper exercise of Legislative      power.
It has long been the rule in Anglo-American jurisdictions     that a 11;
tense or privilege  of public character may be granted or withheld
for good cause by a proper exercise of the police,power’of     the stats.
Merriwether v. Dixon, 28 Tex. 15 (1856); Saint Louis Southwestern Ry.
Co. of Texas v. Shiflet,   98 Tex. 326, 83 S.W. 677 (1904).

      The Texas Supreme Court specifically  upheld residency as a valid
qualification  of licensing in De Grazier v. Stephens, 101 Tex. 194,
105 S.W. 992, 16 L.R.A. (N.S.) 1033 (1907).

      The setting of minimum qualifications  and standards of profi-
ciency for water well drillers    InTexas for the purpose of preventlhg
groundwater pollution   falls well within the purview of the valid
exercise of ‘the State’s police power in the interest of the public
health, safety, and welfare.

      Under the Reciprocity     Section (Section 4) of the Act, the Board
is empowered to dispense with the examination requirement for appli-
cants who hold certificates       of qualification   or registration from
certain states,  territories,      or possessions   of the United States or
foreign countries equal to the Texas standards.          Section 4 expressly
provides that applicants      entitled  to registration   under the Act with-
out taking the examination ‘I. . I must show compliance with the reai-
dency requirements of Section 3, subsection         (h) hereof.”

       Therefore, we answer your query in the negative,       and more fully
as follows:
       (1) Pursuant to Article     7621e, an application   for a Texas Water
Well Driller”8    Certificate    may not be accepted unless the applicant
has resided in the State for at least ninety (90) consecutive          days
immediately prior to tender of his application.
       (2) The ~Texas Water Well Drillers, Board has the statutory duty
to require compliance with the said requirement, and may require an
affidavit,    or other proof of residency,     from each applicant.
       (3) Non-residents,     however, are entitled   to the same exemptions
from licensing    as are State residents.
      a. They may drill water wells on land they own within the State
for their own use without a license.
      b.,They may work on a drilling      rig under the direct rupervisfon
of a duly licensed Texas Water Well Driller.
      c.,And.   they need not obtain a water well drilling      license to
drill mining test holes or oil and gas wells.




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     Hon. J. D. Kirkland,      page 3, Opinion No. (M-98)

                                       SUMMARY

                   Article  7621e, Vernonss Civil Statutes,      sets a mandatory
             prerequisite   that any applicant who desires to drill or offers
             to drill water wells in Texas must have resided within the
             State for ninety (9Q) consecutive     days immediately prior to
             making application   for such a drilling   license.

                                                          VFgtruly     yours,




                                                         -bAW#ORD c. MARTIN
                                                          Attorney
                                                              ,;   General of Texas
                                                            //
     Prepared by Roger Tyler and John Duren                 1
                 Assistant Attorneys General

     APPROVED:
     OPINIONCOMMITTEE

     Hawthorne Phillips, Chairman
     W. V, Geppert, Co-Chairman
     Houghton Brownlee
     Malcolm Quick
     Arthur Sandlin
     Vince Taylor

     STAFF LEGALASSISTANT
     A. J. Carubbi, Jr.




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