Untitled Texas Attorney General Opinion ( 2000 )

OWlCE OF THE ATTonNEV GENERAL. STATE OF TEXAS
JOHN CORNYN
August 30,200O
The Honorable A. J. (Jack) Hartel Opinion No. JC-0276
Liberty County Attorney
P.O. Box 9127 Re: Appointment and powers of a deputy
Liberty, Texas 175759127 treasurer (RQ-0224-JC)
Dear Mr. Hartel:
You have asked this office whether a county treasurer may appoint a deputy, and whether
such a deputy may perform all acts which the treasurer may legally perform. We conclude that the
treasurer may do so, provided the appointment is made in conformity with the employment
provisions of chapter 15 1, subchapter A of the Texas Local Government Code; we further conclude
that such a deputy is “a person appointed to act for another, a substitute, a delegate, an agent,” and
as such “may do anything that his principal can do.” Nail1 v. State, 129 S.W. 630,63 1 (Tex. Crim.
App. 1910).
As a preliminary matter, you inquire about section 83.005(a) of the Local Government Code,
which provides that “[i]n a county in which the county treasurer does not have a deputy, the county
treasurer may appoint a person, subject to the approval of the commissioners court, to act in the
treasurer’s place. The appointed person may act in the treasurer’s place only if the treasurer is
absent, unavoidably detained, incapacitated, or unable to act.” TEX. Lot. GOV’T CODE ANN.
3 83.005(a) (Vernon 1999). Section 83.005(a), however, does not address your concerns. The
purpose of the section is the appointment of a temporary replacement for the treasurer, not a deputy.
As the Senate bill analysis of the measure which became section 83.005 explains, “Currently, in
many counties, the county treasurer is the only person authorized to execute certain financial
responsibilities. As a result, if the county treasurer is unable to perform these duties, the county’s
obligations may not be met on a timely basis. H.B. 1475 would authorize the county treasurer, in
a county without a deputy county treasurer, to appoint a person to act in the treasurer’s place if the
treasurer is absent, unavoidably detained, incapacitated, or unable to act.” SENATE COMM. ON
INTERGOVERNMENTALRELATIONS, BILL ANALYSIS, Tex. H.B. 1475, R.S. (1997). The person
appointed pursuant to section 83.005, in short, is merely appointed to perform certain tasks for the
period in which the treasurer is unable to do so. For that period, he or she is “[dlressed in a little
brief authority.” WILLIAM SHAKESPEARE,MEASURE FOR MEASURE, act 2, SC. 2, In. 118.
The appointment of a deputy treasurer is governed by chapter 15 1 of the Local Government
Code. Section 151.001 provides that “[a] district, county, or precinct officer who requires the
The Honorable A. J. (Jack) Hartel - Page 2 (JC-0276)
services of deputies, assistants, or clerks in the performance of the officer’s duties shall apply to the
commissioners court of the county in which the officer serves for the authority to appoint the
employees,” TEX. Lot. GOV’T CODE ANN. $ 151.001(a) (Vernon 1999) (emphasis added), and
further specifies the contents of such an application. The commissioners court determines the
number of such appointments to be made, and authorizes the appointments. Id. $ 15 1.002. The
commissioners court may not, however, attempt to influence the appointment of any particular
person. Id. 5 15 1.004. The power to make the appointments is lodged in the officer who applied
for them. Id. 5 151.003.
The county treasurer is a county officer for the purposes of chapter 151 of the Local
Government Code, and as such has the power to appoint a deputy treasurer if the provisions of that
chapter are complied with. See Tex. Att’y Gen. Op. No. O-4454 (1942) (county treasurer had power
to appoint deputy under statutory predecessor of chapter 15 1).
A deputy treasurer, once appointed, has the powers of his or her principal. A deputy is “a
person appointed to act for another, a substitute, a delegate, an agent.” Naill, 129 S.W. at 63 1. As
distinct from an assistant, a deputy “may do anything that his principal can do.” Id. “That one is
called a deputy carries with it the fact that he is an alter ego for his superior, being charged with all
the duties as well as the responsibilities of his superior, and empowered to perform the acts and
discharge the duties of such superior, and to that extent becoming the superior himself in his
superior’s absence.” Bigham v. St&e, 148 S.W.2d 835, 840 (Tex. Crim. App. 1941).
The statutory restrictions imposed by section 83.005 of the Local Government Code on the
temporary substitute for the treasurer, namely that such a person may act “only if the treasurer is
absent, unavoidably detained, incapacitated, or unable to act,” are irrelevant to the proper
appointment of a deputy treasurer pursuant to chapter 15 1. A deputy treasurer so appointed may
exercise all the powers of the treasurer.
The Honorable A. J. (Jack) Hartel - Page 3 (X-0276)
SUMMARY
Section 83.005 ofthe Local Government Code concerns only
the appointment of a temporary substitute for the county treasurer
when the treasurer is “absent, unavoidably detained, incapacitated, or
unable to act.” TEX. Lot. GOV’T CODEANN. 5 83.005(a) (Vernon
1999). The appointment ofa deputy treasurer is governed by chapter
151 of the Local Government Code. A deputy treasurer properly
appointed pursuant to chapter 15 1 of the Texas Local Government
Code may exercise all the powers of the treasurer.
Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
CLARK KENT ERVIN
Deputy Attorney General - General Counsel
SUSAN D. GUSKY
Chair, Opinion Committee
James E. Totntelott
Assistant Attorney General - Opinion Committee