Untitled Texas Attorney General Opinion ( 1958 )

Dr. Ira E. Woods, Opinion No. WW-400.
President, Texas State Board
of Examiners in Optometry, Re: Authority of the Texas
307 Bolm Building, State Board of Examiners
Austin, Texas in Optometry to pay the
salary of Executive
Director of the Board in
accordance with the reso-
lution passed by the Board
Dear Dr. Woods: on January 28, 1958.
You have requested an opinion of this office concern-
ing the authority of the Texas State Board of Examiners in
Optometry to pay the salary of an Executive Director of the
Board hired by resolution of the Board on January 28, 1958.
This resolution reads as follows:
"Resolved, that in accordance with the
provisions of Article 4556 of the Revised Civil
Statutes of Texas, the board does hereby employ
the services of Mr. Joe S. Moss of Houston, Texas,
as a necessary assistant in carrying out the pro-
visions of the Texas Optometry Act. It shall be
the duty of Mr. Moss to assist the board, the
members of the board, the Attorney General and
the county and district attorneys of the State
of Texas wherever necessary to carry out the
provisions of the Optometry Act. Mr. Mess shall
bear the title of Executive Director and shall
receive for his services the sum of $500 per
month, effective January 1, 1958. It is further
provided that Mr. MOSS'S services and the Board's
obligationto pay him therefor may be terminated
at any time by the Board or by Mr. Moss."
Article 4556 of Vernon's Annotated Texas Civil Stat-
utes, reads in part as follows:
11. . . The Board shall have the power to
make such rules and regulations not inconsistent
with this law as may be necessary for the perform-
ance of its duties, the regulation of the practice
of optometry and the enforcement of this Act. 0 a s
Dr. Ira E. Woods, Page 2 (WW-400).
The Board shall have the newer to emnlov the services
of stenographers, inspectors, and other"necessary
assistants in carrying out the provisions of this
Act. . . ." (Emphasis ours)
The problem resolves itself into a question of the
interpretation of the term "necessary assistants" as used in
Article 4556 and whether Mr. Moss falls within the term as
therein used.
The rule making power of the Optometry Board as well
as the power to employ assistants is prefaced by the word
"necessary". This word does not have a fixed and definite
meaning but is~a word of flexibility, expressing degrees rela-
tive to the situation and context in which it is used. Scott v.
Walden, 140 Tex. 31, 165 S.W.2d 449 (1942).
In the case of Kee v. Baber, 303 S.W.2d 376 (Tex.
Sup., 1957), the rule making power granted to the Optometry
Board by Article 4556 was before the court. It was there stated
at page 380 that the language which grants rule making authority
"lends support to a construction favoring a broad and liberal
delegation of authority".
The most widelv accented definition of the word
"assistant" is stated to"be one who aids, helps, or assists.
Nail1 v. State, 59 Tex. Crim. 484, 485, 129 S.W. 630, 631 (1910).
In view of the fact that in Kee v. Baber, supra, the power
granted to the Optometry Board to make "necessary" rules and
Regulations is construed to be a broad power, it-is our opin-
ion that the power to hire "necessary assistants" is a broad
discretionary power to hire persons to aid, help, or assist the
Board in carrying out the purposes of the Optometry Act.
The provisions of the Optometry Act provide for the
regulation of the practice of optometry by the Optometry Board.
In his capacity as Executive Director Mr. Moss performs the
following duties:
"1. He assists the Attorney General
and county and district attorneys of the State
in the preparation, prosecution and trial of
law suits involving violations of the Optometry
Act.
"2. At hearings before the board
under Article 4563, Revised Civil Statutes of
Texas, Mr. Moss presents evidence and assists
the board in conducting the hearing.
Dr. Ira E. Woods, Page 3 (WW-400).
“3 . He is in charge of investigations
and the assembling of evidence in connection with
violations of the Texas Optometry Act."
It is, therefore, our opinion that the Texas State
Board of Examiners in Optometry was authorized to employ and
pay the salary of the Executive Director of the Board, as a
"necessary assistant", in accordance with the resolution
passed by the Board on January 28, 1958.
SUMMARY
An Executive Director hired by resolution
of the Texas State Board of Examiners in
Optometry to assist the Board, Attorney
General and county and district attorneys
in carrying out the provisions of the
Optometry Act is a "necessary assistant"
within the meaning of Article 4556, and
::hissalary may be paid from the funds of
the Board.
Very truly yours,
WILL WILSON
Attorney General of Texas
By f/J [::
W. 0. Shultz
Assistant
WOS:pf
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Richard B. Stone
Morgan Nesbitt
Wallace Finfrock
REVIEWED FOR THE ATTORNEY GENERAL
By: W. V. Geppert.