Can a Texas groundwater district charge fees to permit or register a water well?

Texas AG Opinion DM-0022: A Groundwater District Has No Implied Power to Charge Well Fees

Plain-English summary

The Texas Water Commission asked whether an underground water conservation district could charge annual fees for permitting and registering water wells. These districts, operating under chapter 52 of the Water Code, must require permits to drill and equip certain wells, and even wells exempt from permitting still have to be registered. The district pointed to its broad rule-making power in section 52.151 as the basis for charging fees.

The Attorney General said that power did not stretch that far. Section 52.151 lets a district make and enforce rules to conserve, protect, recharge, and prevent waste of groundwater and to carry out its chapter 52 duties, but neither that section nor any other general law specifically authorized a fee for well permitting or registration. The controlling rule, repeated in prior opinions and grounded in Texas Supreme Court decisions, is that a public entity other than a home-rule city may not charge a fee unless a statute specifically provides for it, and fees are not allowed by implication. The district relied on two appellate cases for the idea that the power to regulate carries the power to charge a fee to cover regulation costs, but the Attorney General distinguished both: one involved a home-rule city acting under its broad charter powers (which water districts do not have), and the other actually struck down the fee and only mentioned the regulate-equals-fee idea in passing. Predicting how a court would rule today, the opinion concluded a district has no implied power under section 52.151 to charge the fees, and so it did not need to reach the remaining questions.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Texas groundwater law was substantially restructured after 1991 (groundwater conservation districts are now largely governed by chapter 36 of the Water Code, which expressly addresses fees). Verify current law before relying on any specific rule or citation mentioned here.

Common questions

Could a Texas groundwater district charge a fee to permit or register a well?
Under this opinion, no. The Attorney General concluded section 52.151's rule-making power did not include implied authority to charge such fees, and no statute specifically authorized them.

Why can't the district just imply the fee from its power to regulate?
Because the rule for public entities other than home-rule cities is that a fee must be specifically authorized by statute and is not permitted by implication. The cases suggesting regulation includes a fee power involved home-rule cities or were dicta.

Did home-rule cities get treated differently?
Yes. The opinion noted home-rule cities may exercise powers not inconsistent with general law or the constitution under their charters, so a city case allowing a fee did not control a water district, which has only the powers granted by statute and constitution.

Background and statutory framework

An underground water conservation district under chapter 52 of the Water Code had to require permits for drilling and equipping certain wells (section 52.166 et seq.), and section 52.170 exempted some wells from permitting while subsection (g) still required those exempt wells to be registered. Section 52.151 granted broad rule-making authority to conserve and protect groundwater and carry out chapter 52 duties. The Attorney General applied the principle, supported by prior opinions and by Moore v. Sheppard, Nueces County v. Currington, and McCalla v. City of Rockdale, that public entities other than home-rule cities cannot charge fees absent specific statutory authorization. It distinguished the district from home-rule cities, which under article XI, section 5 of the Texas Constitution may exercise broad charter powers (Lower Colorado River Authority v. City of San Marcos; Tri-City Fresh Water Supply District No. 2 v. Mann), and distinguished the two cases the district relied on (Producers Association of San Antonio, a home-rule-city ordinance case, and Doeppenschmidt, where the fee was struck down and the regulate-equals-fee language was dicta). Predicting a court would follow the specific-authorization rule, the opinion held section 52.151 supplied no fee authority.

Citations

Constitutional and statutory provisions:

• TEX. WATER CODE ANN. §§ 52.151, 52.166, 52.170 (underground water conservation district rule-making, permitting, and registration)
• TEX. CONST. art. XI, § 5 (home-rule cities)

Cases:

• Moore v. Sheppard, 192 S.W.2d 559 (Tex. 1946)
• Nueces County v. Currington, 162 S.W.2d 687 (Tex. 1942)
• McCalla v. City of Rockdale, 246 S.W. 654 (Tex. Comm'n App. 1922, opinion adopted)
• Producers Association of San Antonio v. City of San Antonio, 326 S.W.2d 222 (Tex. Civ. App.—San Antonio 1959, writ ref'd n.r.e.)
• Doeppenschmidt v. City of New Braunfels, 289 S.W. 425 (Tex. Civ. App.—Austin 1926, writ ref'd)
• Tri-City Fresh Water Supply District No. 2 of Harris County v. Mann, 142 S.W.2d 945 (Tex. 1940)
• Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975)

Prior opinions referenced: Attorney General Opinions JM-441 (1986), JM-346 (1985), JM-345 (1985), MW-5 (1979), H-647 (1975).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0022
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0022.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

May 3, 1991

Mr. Allen Beinke
Executive Director
Texas Water Commission
P. O. Box 13087, Capitol Station
Austin, Texas 78711-3087

Opinion No. DM-22

Re: Authority of an underground water conservation district to assess annual permit 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 § 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, preserving, protecting, recharging, controlling subsidence, 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. Currington, 162 S.W.2d 687 (Tex. 1942); McCalla v. City of Rockdale, 246 S.W. 654 (Tex. Comm'n App. 1922, opinion adopted).

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. Producers Association of San Antonio v. City of San Antonio, 326 S.W.2d 222 (Tex. Civ. App.—San Antonio 1959, writ ref'd n.r.e.); Doeppenschmidt v. City of New Braunfels, 289 S.W. 425 (Tex. Civ. App.—Austin 1926, writ ref'd). Producers Association 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, Tri-City Fresh Water Supply District No. 2 of Harris County v. Mann, 142 S.W.2d 945 (Tex. 1940), home-rule cities may, under duly adopted city charter provisions and ordinances, exercise any powers not inconsistent with the general laws or constitution. Tex. Const. art. XI, § 5; Lower Colorado River Auth. v. City of San Marcos, 523 S.W.2d 641 (Tex. 1975). The Producers Association of San Antonio 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 Doeppenschmidt 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. Doeppenschmidt 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 County v. Currington, and McCalla v. City of Rockdale, supra, 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 fees at issue.[2] Because we conclude that section 52.151 does not provide authority to impose the fees in question, we need not address your other questions.

SUMMARY

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

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Will Walker
Assistant Attorney General

[1] The court did make the broad statement that "the power to license includes the power to exact a license fee or tax." 289 S.W. at 427. That statement was not necessary to the holding in Doeppenschmidt and must, we think, be considered as dicta.

[2] [Footnote text not legible in the scanned source.]