Untitled Texas Attorney General Opinion ( 1946 )

The Honorable Railroad Commission of Texas
Austin, Texas
Attention: Mr. Commissioner, Ernest 0. Thompson
Mr. Commissioner, Beauford H. Jester
Gentlemen: Opinion NO. O-6986
Re: Chief Engineer of the Rail-
road Commission-authority of
the Commlsaion'to appoint and
pay salary of.
This will acknowledge receipt of the Commissioners' letter
of December 10, 1945, the pertinent provisions of which are
quoted for clarity:
"The Railroad Commlsslon of Texas finds it nec-
essary to employ a Chief Engineer of the Railroad
Commission and to pay him a salary of $7,750 per year,
being the same salary paid the State Highway Engineer,
the chief engineer of the State Highway Department, in
order that the Oil and Gas Division, as well as the
other D,ivisions120 S.W. 1029,
error refused. Therefore, the Commission's interpretation of the
statutes involved in Its Inquiry is en%itled to great weight.
The Railroad Commission has been given extensive and
ample authority by several general acts of the Legislature to
employ personnel necessary to carry out its duties and responai-
bllities, which general acts, it IES% be assumed, the Legiala-
ture had in mind when it passed the current appropriation bill
and in particular made appropriations to the Commission to cover
contingent expenses.
In addition to the authority contained in the current
appropriation bill refarred to in the Commission's letter, the
Commission has the authority to employ sworn experts to inspect
and assist it when needed in ascertaining the coat of railways.
Article 6466, V,A,C.S. 1% has the power to appoint a chief
supervisor of its oil and gas division, a chief deputy supervisor,
Honorable Railroad Commiaalon of Texas, page 3 o-6986
other deputy supervisors and "shall employ such other assistants
and clerical help as may be necessary for the same purpose".
Article 6030, V.A.C.S. Also for the oil and gas division, the
Commission is "directed to employ such supervisors . . . and
umpires as may be necessary to carry out the provisions of
this Act and are related laws and orders, rules and regulations
of such commission make thereunder, and it shall etnploy,auch
other assistants and clerical help as may be necessary from time
to time." Article 604gc, Sec. 23, V.A.C.S.
The Commission may "employ and appoint, from time to
time, such experts, assistants, engineers, clerks and other per-
sons as it deems necessary to enable it at all times to . . . .
inspect all property and records of the utilitiea subject to the
provisions hereof, and to perform such other services as may be
directed by the Commission under its authority. Such persons
and employees of the Commission shell be paid for the services
rendered such sums as the Commission may fi~x . . . subject to
the approval of the Board of Control." Article 6065, V.A,C.S.
And it may "appoint from time to time such experts and other
help in addition to its present force as may be deemed necessary
to enable 1% to at all times properly administer and enforce
this Act." Article glla, Sec. 1.6, V.A.C.S., having to do with
regulation of motor carriers. In the opinion of the writer,
the foregoing statutes contain ample authority for the Commission
to appoint a Chief Engineer, if such action is considered necea-
sary for the proper discharge of its duties.
In submitting the above- uoted request, the Commission
has mede two significant findings: ? 1) that it finds "it necea-
aary to employ a Chief Engineer of the Railroad Commission" ad
(2) that "there is no similar position in the Railroad Commia-
aion." The dignity of these findings and the regard which must
be accorded them by the ,AttorneyGeneral is considered to be the
aame as that accorded such findings of the Commission by the
Courts of,this State. Although these findings are not orders
of the exact character which have been before the Courts of the
State on numerous occasions, they are findings made in connection
with the internal adminlstra%ion of this important body, and it
is assumed they will be incorporated in,an eppropriate order in
the event the Commission's questions are answered in the affirma-
tive; the Attorney General must assume that the findings have
ample support in fact, although the facts in support of same are
not set out in detail, and he must accept such findings in the
absence of clear and satisfactory evidence that such are entirely
without support,in fact.
The well-known case of Shupee vs. Railroad Commission
of Texas, 123 Texas, 521 73 S.W. (2d),505 (Civ. App. opinion
reported 57 S.,Ww.
(2d) 295), the law of which case was reiterated
Honorable Railroad Commission of Texas, page 4 0 -6986
in the recent case of the Railroad Commission of Texas, et al,
vs o Metro Bus Lines, Inc “, handed down by the Supreme Court of
Texas on December 5, 1945, bu’tnot get reported, clearly indi-
cates the stature of such ffndfngs of the Commission as viewed
by the Courts; and in the opinion of the wrfter, support the fore-
&&g conclusion and control the A%%orneg General in the instant
case. Other cases in which %b.eCourts have discussed and passed
upon the dignity which must be accorded rulings by administrative
officers OP’bodies, made within the discretion vested in them
by the Legislature are Cone’Johnson~vs, James E. Ferguson, 55
S,W. (2d) 153, and State ex, rel. Marrs, et al, VB~.Abshier (Corn,
App,) 263 S.W. 263. The case of Malarsvs. Railroad Commission,
142 Tax. 293, is not consid,eredto be In conflict because 1%
turned on constitutional questfons and the construction of a
particular appeal statute D
The quoted letter Implies that the Commission has also
found as a fact that the position of Chief Engineer which It pro-
poses to establish Is comparable to that of the Chief Engineer of
the State Highway Department, the State Hlghwag Engineer. The
Attorney General assumes that the Commission is familiar with the
powers and duties of the State Hlgbway Engineer, Art. 6669,
V.A,C,S., a8 well as the professional qualifica%i.onsrequired of
the incumbent of the posi%ion, and that the two positions will be
fn fact comparable in all substantial respects. In %he absence
of facts clearly showing they are no% comparable, the Attorney
General is again bound by the ffndlngs of the Commission; he will
not disturb or restrict the exercise of discretion duly vested
In the Commission by the Legislature through the several acts
herein discussed, to determine whether the positions are in fact
comparable,
Since, In the writerrs opinion, the Commission has
ample authority to appoint a Chief Engineer, the next question
Is whether the Commission can compensate him for Ris services,
or stated another way, w”ba%heror no% an appropriation is CUP-
rentlg available out of ‘whichthe Chief Engineer’s salary can be
paid 0 In its letter, %he Commission ha8 s%ated,t’hatit is pro-
posed that he be paid out of monies appropriated by the Depart-
mental Approprla%ion,vBill of the 49th Legfslature, Regular
Session, Senate Bfll No, 317, ppO 810 to 951, Vernon’s Texas
Session Laws Service, and that his employment will be accom-
plished in accordance wf,%h sub-paraagraphd, paragraph 14, Set,
tfon 2 of the General Provisions of said Act, which provides
as follows:
“d . Additional Employees F CompensationD When
any additional employees other’than those for which
specific salary appropriations have been made. are
employed and are to be paid out of contingent aooro-
Honorable Railroad Commlssion of Texas, page 5 o-6986
priations, such employees Shall no% be paid a larger
amount than that provided in the regular appropriated
salaries for similar positions in such department or
agency, and Ln the event there are no similar posi-
tlons within such department, then such addltional~'
employee shall not be ,oalda larger amount than that
provided for BimilaP Positions in other departments
01"auencies. In the event laborers, skiIled 'laborers,
and mechanics cannot be obtained at the above-mentioned
salary Scale, then the head of such department may pay
for temporary employment only not exceeding the pre-
vailing wage scale paid in the locality where the tem-
porary service is to be rendered," (Emphasis supplied)
The attention of the Commission IS also 1nvlted~'tothe
item8 Of .%ppPOpPiatiOnfOP "COntingetItExpenses" in it8 "tiein
Office", "Motor Transportation Division", "Oil and Gas Dlvlslon",
and 'Gas Utilities Divlslon", included in the Departmental Ap-
propriations Act, and the language Fn each, which provides it
may be used to pay "all other necessary help and expenses",
The quoted provision of the Departmental Appropriation
Act, along with the speclffc appropriations to the Commlsslon for
"Contingent Expenses" constitutes ample authority for the Commis-
sion to employ personnel not specifically itemized, and is author-
ity in addition to that heretofore referred to at some length. As
already stated, it is the oplnion of the writerthat:%he Attorney
General should and must accept the findings of the Commission
relative to the necessity for the employee, the nature of hi3
duties, the fact there is no similar position In the Railroad
Commission which would furnish a "yardstick" for setting his
salary, and that this position will be similar to that of the
State Highway Engineer. The "Contingent Expense" Items of ap-
propriation have been made by the Legislature, to be expended
'as needed" and in accordance with the discretion of the Com-
mission, as Slightly limited by the aforesaid provisions of the
Act.
If the Legislature should disapprove the Commission's
.-. manner of exercising Its discretion in spending these items of
~...approprlation, and should the Legislature be of the opinion the
Commission should not have a Chief ~Engineerat the salary pro-
posed, then it may express itself accordingly in the next biennia
appropriation bill. The Attorney General, like the Courts, will
construe appropriations made for carrying out the purposes of
legislation concerning the Commission liberally, to effectuate
the purpose and Intent of the legislation creating and financing
the Commission and that giving the Commission additional power
and duties; this construction is required by the case of Railroad
Commission of Texas v. Galveston Chamber of Commerce, 105 T. 101,
Honorable Railroad Commission of Texas, page 6 o -6986
145 s.w, 573. The Commission Is fn the best position to know how
its contingent appPopriation8 should be spent to effectuate the
purposes of legislation concernfng the Commlsslon. It is the
opinion of the writer that the Commi.ssionmay compensate t%B
Chief Engineer out of funds appropriated fn the current departmen-
tal Appropriation Act, pursuant tothe quoted section of “General
ProviBio~s" and the specific Items hereafter referred to.
FuPtheP, as to the nature of the duties of’the pro-
posed Chief Engineer, atten;tionis invited to the usual signifl-
cation of the’term .or title as it 1s used in commercial as well
a3 govePnmenta1 organizations; the Chief Engineer is just that,
the highest ranking engineer having general authority and technl-
cal supervision, as well as administratIve PeBpOnsibility ‘for
suchsupervision, ov’erall other engineer8 in the organization-
such, fop example, as division engineer, right-of-way engineer,
maintenance engineer, various specialized engineers, such as
petroleum, civil, elect,ricaland mechanical, The State Highway
Engineer does have such over-all supervision of eng,ineering
matters Fn the State Highway Department.
The title Chfef EngineeP was discussed by the Courts
In the cases of Herrfck v. Belknap’s Estate, 27 Vt. (1 Williams)
673, 679,, and State vs. E. V, Doyle & Co., R-1. 96 ~..605,.~610,
cited in 6 Words & Phrases, 747" The diBtinC%iOn between the
Chief EngineePB and other engineers may be better understood from
the following quotation from the latter case:
,I
0 Y We think %he words
0 Y 0 ‘chief engfneer’
contain implications as to the authorftg to represent
the principal which are wan%,fngIn the Word3 sconsul,t- .
ing engineer.’ The word ‘consul5ing in su.chconnec-
tlon simply designates one who is brought Into confer-
ence about a case or projecb or some phase thereof, DD”
Thus, 1% fs apparen,tthtlt%he items of approprla’tfoa
to the Commission for “Senior Engineer”, “Petroleum Engineer”,
“Junior Engineer”, “Chief Va,iua%LonEngineer”, “Valuation
Rngineer” and “Civil Enginee:?”do no,tcomprehend the over-all
duties and functions of a chief eagfneer In the usual signlfica-
tion of that term, which augments the Commission’s findIng that
there is no simil%P po~I%fon now in existence in the Commission,
the salary for which would determine the maximum which could be
paid the Chief Engineer under the limfta%lon provided in sub-
paragraph d D
Since the employee is to be the Chief Engineer of the
Railroad Commission and to have cognfzance over matters In the
several divisions, as indicated by the Commission’s letter and
the titie of the position, It fs believed to be appropriate and
proper that his salary be paid from any one of the several afore-
-- .
Honorable Railroad Commission of Texas, page 7 o-6986
said contingent appr~opriations, But he r?mstnot be a subordinate
in one of the divisions if he is to receive a salary equivalent
to that of the State Highway Engineer, for if he were a part of
and limited in his authority to one of the divisions, his salary
would be limited by salaries set by the Legislature for similar
positions in the division, 0~ for employees performing similar
duties. The Chief Engineer, if functionally restricted to one
division, could not be paid a salary in excess of the Head of
the Division's salary. Opinion of the Attorney General, No.
o-5440, dated July 31, 1943.
The Attorney General has passed upon the provisions of
ppio~ appropriation acts for "Additional Employees' Compensation",
couched in substantially the same verbiage as sub-section d, above
quoted; the Opinions a,peNumbers o-5440, 0-6022, O-6659 and O-6739.
Each of these opinions can and must be distinguished upon the facts
before this Department in one or more ways, but the distinction
common to each 1s that .thLsDepartment did not have before it
findings on the part of a quasi-legislative, quasi-judicial body,
like the Railroad Commission of Texas, (1) that the positions were
necessary; (2) tha,tno similar positions existed in the depart-
ments, the salaries for which would determine the maxinum salary
which could be paid as 13 the case here, and (3) an implied find-
ing that the position sought to be established was similar to
another specific position in the State government. THerefore,
these opinions ape not considered persuasive OP binding in the
instant case.
In summary, you ape respectfully advised that the Com-
mission has the authority to appoint a Chief Engineer and to
compensate him from any one of its contingent,items of appropri-
ation.
Yours vex-yturly,
ATTORNEY GENERAL OF TEXAS
By s/James Noel
James Noel,
Assistant
JN:JCP:wc
cc: State Comptroller, Austin, Texas
cc: State TLaeasurer,Austin, Texas
APPROVED DEC 20, 1945
s/Carl& C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/GWB Chairman