                       April 18, 1967

Hon. Frank Booth                      Opinion NO. M- 60
Executive Director
Texas Water Rights Commission         Re:   Whether, under the
Sam Houston State Office Bldg.              stated facts, the five
Austin, Texas                               year provision of Art.
                                            7519a, V.C.S., precludes
                                            entry'of an order cancel-
Dear Mr. Booth:                             ISng permit No. 313.
     You have requested
                  . .   an opinion from this office on whether
the five year provision of Article 7519a,,Vernon's Civil
Statutes, is applicable in the following fact situation: A
portion of PermitNo. 313 was voluntarily relinquished by its
joint owners L. D. and Arthur Singley who executed separate
affidavits in 1962 in which they stated that a portion of
the permit has been abandoned and that they waived notice and
public hearing and requested that the Commission cancel the
abandoned portion of the permit, On January 7, 1963, pursuant
to the above request of permittees, the Commission entered an
order cancelling the abandoned portion of Permit No. 313; the
permittees were then left with the right to divert and use
160 acre-feet of water from the Clear Fork of the Brazes for
the irrigation of 80 acres of land in Fisher County, Texas.
      On October   10, 1966, when Commission records showed that
there had been no water use under Permit No. 313 for more than
ten years, an order was entered pursuant to Article 7519a,
Vernon’s  Civil Statutes, setting the permit for public hearing
on the matter    of involuntary total cancellation.
     On January 24, 1967, after due notice had been given pur-
suant to law, the matter of cancelling Permit No. 313 regularly
came before the Commission on its docket. No appearance was
made by the permittees. The question was raised whether the
five year proscription of Article 7'jlqa,Vernon's Civil Statutes,
was applicable:




                        -   283   -
Hon. Frank Booth, Page 2, (M-60)


          ,I
               0 once cancellation oroceedinns have
                   0   a

     been initiated against a'parti&lar per&t or
     certified filing and a hearing haspbeen held
     thereon, the Board shall not initiate proceed-
     inRs   ainst such pertiltor'certified filing
     for a ieriod of not less than five '(5)sears
     after the date of such public hearing:"-
     (Emphasis added)
     There was no public hearing in 1963 when a portion of
Permit No. 313 was cancelled at the request of the permittees
for cancellation withoutpublic             Therefore,'the 'five
year proscription 'in Article '(219 Vernon's Civil'Statutes,
would not act as a bar to total c%ellation    on January 24;
1967. Attorney General's Opinion No. WW 1037 clearly distin-
guishes between voluntary    waiver or relinquishment of water
rights under Commission Rule 615.1 and involuntary proceedings
instituted pursuant to Article 751 a, Vernon's Civil Statutes.
Further, by Article 7477, Section 3 (b), and Artidle 7544,
Vernon's Civil Statutes, the Commission has the added authority
to cancel water rights which have been abandoned for three
consecutive years; such an action clearly would not fall'within
the purview of the five year prohibition of Article 7519a,
Vernon's Civil Statutes.
                           SUMMARY
                           -------
          Under the stated facts, the Texas Water
          Rights Commission is not barred by the
          five year provision of Article 7519a
          from cancelling Permit NO. 313 in 1967
          because of voluntary partial cancella-
          tion of the permit in 1963.
                                  Vef3 truly yours,




Prepared by Roger Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips Chairman
W. V. Geppert, Co-thairman
Sam Kelle
Houghton 5 rownlee
Vince Taylor
Pat Bailey
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.            _ 284 -
