Untitled Texas Attorney General Opinion ( 1965 )

August4, 1965
A-bHxiY\- ,ia.;5r.lb.I.
Honorable Robert S. Cslvert Opinion Ro. C-4yir
Comptrollerof Public Accounts
Aushn, Texas Re: Whether the First
Assistants and Chief
Deputies In the various
State offices end
departmentsare entltled
to reimbursementfor
their actual meals,
lodging and incidental
expenses while travel-
lng on official business
either ln or out of the
Dear Mr. Calvert: State of Texas.
You have requested a~ opinion from this department
on the question as hereinafter stated:
Whether the First Assistants and Chief Deputies
In the various State offices and departments'are.
entitled to reimbursementfor their actual meals,
lodglng and Incidental expenses while traveling
on official business either in or out of the
State of Texas.
In connection with this request, I quote from your
letter the following: i
"In this connection I invite your attention
to subsection (a) of Section 17, Article V of
House Bill 86, Acts 56th Legislature,Biennial
AppropriationBill from September 1, 1963 to
August 31, 1965, both dates inclusive,which
reads as follows:
'Executiveheads of State agencies,
Including the Executive Director of the
Legislative Council, shall be reimbursed for
their actual meals,,lodging and incidental
expenses when traveling on official business
either in or loutof the State.'
-2259-
Hon. Robert S. Calvert',
page 2 (C-477)
"Also I want to call your attention to
subsection (a) of Section 17, Article V of
Rouse Bill 12, Acts 59th Legislature,Biennial
AppropriationBill from September 1, 1965 to
August 31,'1967,which reads as follows:
'Executiveheads of State agencies,~
including~theExecutive Director of the
LegislativeCouncil, shall be reimbursed for
, their actual meals, lodging and incidental
expenses when traveling on official business ; :
either in or out of the State.'
"Further,I Invite your attention to Section
2 of &he Travel RegulationsAct of 1959, Codified
as Article 6823a of Vernon's Civil Statutes,,which
provides:
ll%e provl&ons of this Act shall apply to
all officers, heads of state agencies, and
state employees. The provisions of this Act
shall not apply to judges and other judicial
employees~paldby the state, counties or other,
political subdivielonspursuant to law. Heads
of state agencies shall mean elected state
officials, excludingmembers of the Legislature
who shall receive travel reimbursement as pro-
vlded by the Constitution,appointed state
officials>appointed state officials whose. ..'
appointment Is subject to Senate confirmation,
directors of ltiglslal$veinterim committeesor
boards, heads of state hospitals and special
schools, and heads of state lnstltutlonsof.
higher education.' (Bmphaslsadded)
"I have no difficulty In determiningthat
elected State officials and appointed State
officials who are confirmedby the Senate are
entitled to reimbursementfor their actual meals,
lodging and~incidentalexpenses; however, i.n view
of the fact that the Travel RegulationsAct of 1959,
as amended, also defines heads of State agencies
to include 'appointedState officials,'I am desirous
of securing your opinion as above stated on whether
thls terminologyshould be construcd'asincluding
the First Assistants and Chief Deputies in the
various State Offices, Departmentsand Agencies.
It is my understandingthat these officials take
the official oath of office, and ln most.cases,
-2260-
Ron. Robert S. Calvert, page 3 (C-477)
they have complete authority to function in the
absence.or inability of the particular office
holder."
Article 4340, Revised Civil Statutes of Texas,.
provides in part as follows:
"The office of Chief Clerk to the Secretary
of State Is hereby abolished, and the office of
Assistant Secretary of State Is hereby created.
The Assistant Secretary of State shall be an
attorne -at-law, and he shall have had at least
five (5 7 years actual practice in this State
prior to his appointmentand shall perform all
the duties required by law to be performed
by the Secretary of State ‘whenthe said Secretary
of State Is absent or unable to act for any reason.
. . . The said Assistant Secretary of State shall
serve as such so long as the Secretary of State
appointing Na is In office."
Artlcle,u12, Revised Civil Statutes, of Texas, pro-
vides:
"In case of the absence or Inability of the
Attorney General to act, the first office assistant
of the Attorney General shall discharge the duties
which devolve by law upon the Attorney General.”
Article 4352, Revised Civil Statutes of Texas,
provide8 :
"The Comptroller shall appoint a chief clerk,
who shall take the official oath aad give bond in
the sum of ten thoueand dollars payable in like
nmnner as the bond of the Comptroller,conditioned
for the faithful performance of his duties. ‘Said
clerk shall perform the duties of the Comptroller
when the Comptrollermay be unavoidably absent
or incapable, from sickness or other cause, to
discharge said duties, : . .v
The above Statutes are set out to point out a few .
o,ieFs Statute8 creating the offices of Assistants and Chief
.
In the case of Pfeffer v. Whnke, 260 S.W. 1031(Tex.Com.App.1924), In discu8sing Articles 4318 and 4319,
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i ...
;
Hon. Robert S. Calvert, page 4 (C-477)
Revised Civil Statutes of Texas, which Is now Article 4340,
and Article 4343, which is now Article 4352 of the Revised
Civil Statutes of Texas, the Court said:
"It is observed that articles 4318 and
4343, respectively,require that the secretary
of state and the comptrollershall each ap-
point a chief clerk. It Is not optional with
either to appoint or not appoint such chief
clerk. The statute Is mandatory In providing
for a chief clerk for each. The offices of
chief clerk of each Is thus created by statute.
It is likewise observed that the statutes
provide that, ln the absence of the secretary
of state, or his inability to act from any
cause, the chief clerk may perform all the
duties required by law of that officer, and
that It shall be the duty of the chief clerk
of the comptrollerto discharge the duties
of the comptrollerwhen he may be unavoidably
absent or Incapable from sickness, or other
causes, to discharge said duties.
"The service of the secretaryof state
and the comptrolleron the board of educa-
tion 1s the performanceby each of a duty.
attached by the statute to the office held
by each. The duties are not personal. They f
are duties attached to the offices. Any hold-
er of the office of secretaryof state or comp-
troller must serve as a member of the board of
education as a part of the duties of those
offices respectively. Since the statutes pro-~
vlde that the chief clerks pyryrespectively
perform the duties attaching to those offices,
the chief clerks..may, ln the contingencies
mentioned In the statutes,perform the par-
ticular duties attaching to the offices of
secretary of state and comptrollerby virtue
of the statutes making them members of the
board of education. In such cases the chief
clerks do not perform those duties by delega-
tion of authority from their chiefs. They ,
perform them by virtue of authority of the
Legislature In the same way that their chiefs
are authorized to perform them. The Iegls-
lature could have provided that, In the
absence, etc., of the secretary of state and
-2262-
. . * -
Hon. Robert S. Calvert, page 5 (C&7)
'comptroller,the chief clerks of either or
each should be members of the board of cd-'
ucatlon. The Ieglelaturehas-+one the same
thing ln a differentway by prescribing that
the chief clerks provided by statute shall
and may, in the absence of the secretary 00
state and the comptroller,perform the duties
of those officers, among which are duties
arising from their membership on the state
board of education. Thus the chief clerk8
are officers provided by statute, and
authorized by statute, to perform the duties
attaching to the officers of secretary of state
and comptroller,making those officers members
of the board of education. The ruii authority
of the chief clerks thun to .act arises from
the acts of the Leglslature~lnvestlngthem
with such authority *hen the contlngencles
mentioned ln the statutes arise. There IS
no delegation or authority to the~chlef
clerks by the secretaryof state and the
comptroller. In truth and ln fact, the
secretaryof state and the comptrollerare
lmpotent to prevent the chief clerks from
thus performlng the dutler o? those offices
ln the contlngenclesof the statutes author- '
lzing them to act. ~!Phechief clerks have the
sazszauthority to perform the duties of those
offAces in those contingenciesthat the
secretary of state and.coolptroller.haveto
perform them at all otherstimes--theauthority
of the Legislature. The chler clerks are
,I
. . . ' (Emphasisadded)
The foregoing case authorSty makes It clear that
where a statute authorizes the designationof someone to
exercise the powers and carry out the functions of a stats
office ln the absence or inability to perform of the person
holding such office, the person so designated to act derives
hls authority, not by delegation from the officer he holds
under, but, directly from the Legislature,and la, therefore,
a public officer of this State.
-2263-
page 6 (C-477)
Hon. Robert S. Calvert,,
It therefore follows that when an Individual Is
designatedas first assistant, chief deputy, or by whatever
title, to 'a State office, pursuant to a statute whereby
such person has the atatutoiy authority to act for such
office, he Is an "appointedstate official" as that term
Is used ln the definitionof "heads of state agencies" set
forth ln Section 2 of Article 6823a of.Vernon'sCivil
Statutes.
It Is therefore the opinion of this office that
any first assistant, chief deputy, or by whatever title
known, of the various State offices, departmentsand agencies,
who are authorized by statute to act for such office, depart-
ment or agency ln the absence of, illness or inability to
act of,the head of 8UCh office, departmentor agency, is an
appointed State official, and such appointed State official
would-be entitled to reimbursementfor their actual meals,
lodging and incidentalexpenses while traveling on official
business either ln or out of the State of Texas.
.,:
:.
:_;
!':-
First Assistants and Chief Deputles"lnthe
various State offices and departments,who are
authorizedby statute to act for such office or
department ln the absence of, Illness or inability
to act of the'head of such office or department;
is an appointed State official, and would be entitled
to reimbursementfor his actual meals, lodging and
incidentalexpenses while travelingon official
business, either in or out of the State of,Texas,
Yours very truly,
WAOCORRR
CARR
Attorney General
BY
J?lB:sj
.‘.,-2264-
Ron. Robert S. ~Calvert,page 7 (Can)
APFROVED:
OPIRIOR COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Philllp,,Crawford
Arthur Sandlin
Roy B. Johnson
APPROVRDFOR!lXRA!ITORRRYGRRRRAL
BY: T. B. Wright
,
-2265-