Untitled Texas Attorney General Opinion ( 1991 )

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May 3,199l
Mr. Allen Beinke Opinion No. DM-22
Bxecutive Director
Texas Water Commission Re: Authority of an underground water
P. 0. Box 13087, Capitol Station conservation district to assess anuual per-
Austin, Texas 78711-3087 mit and registration fees (RQ-2193)
Dear Mr. Beinke:
An underground water ,conservation district operating under chapter 52 of the
Water Code must require permits for the drilling and equipping of certain water wells
within the district. Water Code !j 52.166, et seq. Section 52.170 exempts various kinds of
wells from the permitting requirement; however, subsection (g) of that section requires
such exempt wells to be registered with the district and to conform to certain district rules.
You ask whether, under the rule-making powers provided for in section 52.151, such
districts have authority to impose fees for well permitting or registration. Section 52.151
provides:
A district may make and enforce rules to provide for conserving,
presetving, protecting, recharging, controlling sub-sidence, and
preventing waste of the underground water of an underground water
reservoir or its subdivisions and to carry out the powers and duties
provided by this chapter.
Neither chapter 52 nor any other provisions of general law applicable to
underground water conservation districts specifically provide for a district’s imposition of a
fee in connection with well permitting or registration. Prior attorney general opinions have
consistently ruled that public entities, other than home-rule cities, may not charge a fee
unless it is specifically provided for by law, and that fees are not permitted by implication.
See, e.g., Attorney General Opinions JM-441 (1986); JM-346, JM-345 (1985); MW-5
(1979); H-647 (1975). Accord Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946); Nueces
County v. Currhgton, 162 S.W.Zd 687 (Tex. 1942): McCalla v. Cityof Rockdale, 246 SW. 654
(Tex. Comm’n App. 1922, opinion adopted).
p. 100
lvf.r.AllenBeinke-Page 2 0x-22)
A brief submitted in connection with your request cites two Texas appellate court
cases for the proposition that the power to regulate an activity includes the power to
impose a fee to cover the cost of regulation. Pnxfucers A&n of San Antonio v. Cz?yof San
Antonio, 326 S.W.2d 222 (Tex Civ. App.-San Antonio 1959, writ refd n.r.e.);
Doeppemchmidt v. C@ of New BmunfeLr, 289 S.W. 425 (Tex. Civ. App.-Austin 1926, writ
ref d). Bu&cear As.rc&tion of San Antonio dealt with the authority of a home-rule city to
impose a fee by ordinance and, as such, is distinguishable from the situation addressed in
your request. While water districts and other political subdivisions of the state have only
such powers as are provided by the constitution and statutes, T&City Fmh W&r Supp&
Dirt. No. 2 of Hanis Cot&y v. Mann, 142 S.W.2d 945 (Ten. 1940). home-rule cities may,
under duly adopted city charter provisions and ordinances, exercise any powers not
inconsistent with the general laws or constitutior~ Ten. Const. art. XI, 8 5; Lower Colorado
RkrAuth v. Cityof San Maws, 523 S.W.2d 641 (Ten. 1975). The Fmducers Astociation of
San Anto& court specifically found that the home-rule city at issue had authority under its
ordinance, adopted pursuant to article XI, section 5, to impose a particular fee. 326 S.W.
2d at 225.
The heppen@midt opinion dealt with a license fee a city had attempted to impose
on motor vehicles used for hire; it did not indicate whether the city in question was home-
rule. Doeppemchnddt struck down the fee there because it found that applicable state law
specifically denied the city the power to impose the fee. 289 S.W. at 427.1
We believe that a court today, if presented with the issue whether an underground
water conservation district has the implied power under section 52.151 to impose a fee for
permitting or registering wells, would follow the rule recognized by the Supreme Court in
Moore v. Sheppard, Nueces Co~nly v. Ctmington, and M&alla v. City of Rock&ale,supm --
that fees must be specifically provided for by law and are not permitted by implication -
and would accordingly hold that such districts are not thereby authorized to impose the
%e~didmakcthcbroadstatement that’thepoxrtoliccnacincluduthcpowcrtocxactr
licemefee or tax.’ 289 S.W. at 427. That statementwas not ncaaary to the holdingio DocppmKhmidf and
must,wethi&hecoasidoradasd&ta
p. 101
Mr.AllenBcinke-Page 3 0X-22)
fees at issue.2 Because we conclude that section 52151 does not provide authority to
impose the fees in question, we need not address your other questions.
Section 52.151 of the Water code does not provide authority for
underground water conservation districts to impose a fee in connection
with permitting or registering wells.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JuDGEzoLLlE STEAKLEY (Ret.)
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by Wii Walker
Assistant Attorney General
p. 102