Untitled Texas Attorney General Opinion ( 1947 )

’ ,
R-623
Ronorab1e Bert For;a . opinion r?o.v-350
Administr8tOr ' "
Texas Liquor Control Board" Re: The authority of the
Austin, Texas ~ Liquor Coutrol Board
02';AdminlStr8tOr,Uu-
: der the grovlslons of
a " the'Texas Liquor Con-
trol Aat, to 8ppOiIlt
8ll "ASslSt8nt Admill-
" ltltr8tOr"8tldrelated
: :questlous.' .
DearMr.Ford:
Your letter df.,&ue 25, 1947, reques&g'the.
dplulou of this Department concerning the authority of
the Liquor Control Board pr @mlnlstretor to appoint an
Assistant Administrator and other related qUeStlouS reads
in psFt 8S.fO11OWS: ; ..
"The Texas Liquor Control Bo8rd 8nd Ad-
mlnlstrator flud that it would be convenient
8ud necessary In ordey,to properly.SdIUlniS~r
and carry out the provl``ous of the Texas
Liquor COUtl’ol.
Aot to 8ppOlIlt8n ASSlSt8ut .
Admlnlstr&tor with t$e same duties, powers aud
authority to act In th& absenoe of the Admln-
lstrator 8s possessed by the Admlnlstrator.
The Departmental ApFoprlatlon Bill for the
Blenulumbeglpnlug September J.,1947, sets UP
8 salsiryfor an Assistant Admlnlstrator..
"Section.5of Article I of the Texas Liquor :
' Control !!Otprovides 8s fo11OWS:
.
"'The Board or Admlnlstrator shall
appoint all necessary clerks, stenog-
raphers, inspectors, and chemists and
other employees to properly enforce
the provisions of this Act.'
"lThe~Board or Administrator shall
fix the duties, Salaries, 8Ud W8@S
274 Hon. Bert Ford, Page 2, V-350
of all employees authorized by
this Act,'
"Paragraph (d), Section 6, Article T
of the Texas Liquor Control Act In enumer-
8tiIIgthe powers of the Board, reads 8s
follows:
I,
'I To exercise all other powers,
duties, and functions conferred by
this Act and 811 powers Incidental,
convenient or necessary to enable it
to sdmlnlster or carry out any of
the provisions of this Act and to
publish 811 necessary rules and reg-
ul8tlons.' ~/
"&tibn 12 '(a), (3) of Article I of
the Texas Llquor,Control Act reads as
follows:
"'The Board or Administrator may
designate any of.lts members or rep-
resentatives to conduct any hearing
au$horlzed by this Act, making a.
record thereof and the Board or Ad-
ministrator may upon such record ren-
der Its decision as though the hear-
ing had been held before 811 members
oS.the Board or Administrator. The.
Board may prescribe Its own rules of
prpaedure aru.evldence~.'
. "In view of the foregoing provisions, we
would appreciate your opinion tiponthe follow-
ing questions:
"1. Doe8 the Board or Administrator
have authority under the Texas Liquor
Control Act to appoint an Assistant
Administrator?
"2. Can the Board or Administrator
delegate to the ASSiSt8nt Admlnlstra-
tor, In the absence of the Adminlstra-
tor, the same powers, authority and
duties delegated to the Administrator?
,
!’
Hon. Bert Ford, Page 3, V-350 j 275
"3. If not, In what respect would
the authority of such Assistant Ad-
ministrstorbe limited?
"4. Inthe absence OS the Admin-
istrator, can the Assistant Admlnls-
tratOr conduct hearings and pass upon
same by proper delegation from the
Board or Administrator?
"5. What procedure would be neces-
s8rg to properly and legally confer
upon the Assistant Administrator
these duties and powers?. ,~-
.';,6.~ -Should the ~AssistantAdminis-.
trator possess the same quallSicatlons
and give bond In the same amount as re-
quired by law of the Administrator?".
In order to satisfactorily answer your questions,
it will be necessary to construe vsrlous provisions of the
Texas Liquor Control Act which you correctly set out in
your letter.
' Under the provisions of Section 5 of Article I
of the TexasLIquor Control Act, It is difficult to place
a construction other than that the Board or Administrator
has the authority to designate one of its employees as
"Assistant Administrator" In carrying out the provisions
of the Act. While the Act does not specifically provide
for the appointment by nams of an "Assistant Admlnlstra-
tar", the language used In this Section 1s sufficiently
brosdto allow such appointment. Also, under the provl-
slons.oS Senate Bill 3qlas passed by the Fiftieth LegIs-
lature, 1947, the salary for an "Assistant Administrator"
Is provided for In the appropriation to the Texas Liquor
Control Board at $5,004.00 per annum. Therefore, your
first question should be 8nswered~"Yes".
The answer to your question numbered 2 depends
upon whether the Board or Administrator can delegate du-
ties involving administrative discretion. By specific
statutory provision, the Board has the authority to ap-
point an Administrator, who shall admlnister,the provl-
sions of the Act and to delegate some of its powers and
duties to him. In answering your first question, SUpr8,
we have Indicated that it Is not necessary for the Act to
specifically provide for ~the appointment of each Individual
c
2;r6 Hon. Bert Ford, Page 4, V-350
employee. However, before the Board or Administrator
would have the authority to delegate its admlnlstra-
tive dlscretioaary duties, there would have to be statu-
tory authority to do so. There are specific Instances
provided whereby the Board Is authorized to delegate
its duties to the,.Administratorbut we cannot infer the
authority to delegate matters Involving discretion to
any other employee or for the Administrator to sub-
delegate his official duties. Nowhere In the Act do we
find any specific provision 8llowlng the Board or Ad-
ministrator this power. We are, therefore, 6f the
opinion that such delegation of duties lnvolvrug @is-
cretlon to an Assistant Administrator would be invalid.
Railroad Commlsslon of-Texas et al vs. Red Arrow Freight
Lines, Inc., et 81, 96 S. W. (2d) 735; Railroad Commis-
sion of Texas et al vs. Southwestern Greyhound Lines, n
Inc., 92 3. W. (2d) 296; comnerc181 Standard IUSUr8nCe
Company vs. Board of Insurance Commissioners of Texas,
34 S. W. ,(2d)343; State, et al vs. Roblson, Land Com-
miui;o$r, et al, 119 Tex. 302; 30 S. W. (2d) 292;
State, 129 3. W. 630; Gano et al vs. Palo
Pinto Cointy, 71 Tex. 99, 8 S.W. 634; Home Zoologl-
csl Arena Company v. City of IkbllSS,et 81, 45 S. W.
(2d) 714.
We are of the opinion that the intention of
the Legislature In delegating certain powers to the Board
and 8llowlng delegation to the Atiinistrstor, W8S that
either the Board or the Administrator must do such pre-
scribed duties, and that no other person would be author-
ized to act for themon discretionary matters. This con-
clusion iS dr8Wn from a portion Of SeCtiOn 5, Article 1,
TeX8S Liquor Control Act, which provides that "The Admin-
istrator shall devqte his entire time to said office",
and from Sec$.lon128, Paragraph (3) of Article I Of said
Act. Drovldinn that 8 reuresentatlve mav be desinnated
to i&e a rec&d at 8 hekng~upon which the Boa& or
Administrator may render its decision. In other words,
In such matters as cancellation of permits, where the
Board or Administrator has discretionary powers, such
powers cannot be delegated without specific statutory
8UthOrizatiOn.
In support of the above proposition, your at-
tention is called to Volume I, Section 312, Sutherland on
Statutory Construction, which is quoted in part below:
,I . . . Nevertheless, in many statutes
It is customary to grant power directly to ~the
277
Hon. Bert Ford, Page 5, V-350
executive head or the board orcommission.
If the statute exuress~y~8uthorlses the re-
delegation to 8 subordinate offlcial,~the
subdelegation 1s valid. . . . . . It is
equally obvious that ministerial or admln-
istrative functions may be subdelegated for
the ordinary board or commlsslon could not
personally perform theemultitude of clerical,
physical and~nondiscretlonary acts required
of the usual sdminlstrat~ve agency. . . ,. It
(Emphasis added)
The rule ,ls stated In Texas Jurisprudence
(34 Tex. Jur. 459, Sec. 79) In the following language:
which are regarded as ~8 part of the public
trust assumed. . . . .
"But 8 board may delegate ministerial or
administrative functions not calling for the
exercise of reason or discretion by appoint-
ing ager$s to perform duties of that character.
. . . . (Emphasis added)
Also, in Texas Jurisprudence (39 Tex. Jur. p. 68,
Sec. 33) is found 8 statement in this connection as quoted
below:
"A~delegation of power, when permitted,
must be expressed~by clear and express terms
or by clear implication. An administrative
agency has only such authdrlty especially
with respect to the regulation and control
of private rights and propertIes, as,ls
clearly delegated or necessarily implied
from that expressly delegated. And when a
statute delegating 8 power directs the man-
ner of its exercise that method Is exclusive
of all others."
In Home Zoological Arena Company vs. City of
Hon. Bert Ford, Page 6, V-350
Dallas, supra, Judge Alexander, the present Chief Justice
of our Supreme Court, while he was serving on the Waco
Court of Civil Appeals, said:
"The general rule is that, where the
law creates 8 boardeto have charge of the
affairs of a municipalits or a ~partlcular
From the above discussion, your second question
should be answered in the negative.
Your third question can be answered by stating
that the Board or Administrator shall fix the duties of
all employees and thus can authorize the Assistant Admin-
istrator to do any act, except discretionary acts, dele-
gated to the Board or Administrator. Any mlnlsterlal duty
as distinguished from a discretionary one could be placed
with such employee.
The distinction between 8 ministerial and a dls-
cretlonary act Is set out in the following excerpt from
Texas Jurisprudence (34 Tex. Jur. p. 452, Sec. 73):
"The following distinction between mlnls-
terlal, judicial and other acts Is apparent in
the decisions: where the 18W prescribes and de-
fines the duty to be performed with such pre-
cision and certainty as to leave nothing to the
exercise of discretion or judgmnt, the act Is
ministerial; but where the act Involves the
exercise of discretion or judgment In determin-
ing whether.the duty exists, It is 'not to be
deemed merely mlnlsterlal. An executive offi-
cer acts In quasi judicial capacity when, ln
the exercise of his functions, he is required
to pass upon facts and determine his action by
the facts found. As to whether an 8Ct is quasi
Bon. Bert Ford, Page 7, v-350
judicial or merely mInisteri depends upon
the statute which empowers the officer."
As we have set out above, the Board or Admin-
istrator may designate one of Its members or represen-
%atives to conduct hearings. However, the rendering of
8 decision based upon such hearing Is a discretionary
power specifically granted to the Board or Administrator,
and It cannot be delegated to any other person In the
absence of statutory authority to do so. Therefore,
your fourth question is answered "No".
In order to legally confer 811 of the author-
ity Inquired about upon an "Assistant .Admlnlstrator",8
statutory provision should be passed by the Legislature
providing that such Assistant shall have the same powers
and duties 8s the Administrator and authorizing the Assist-
ant to act in the Administrator's absence; The quallfica-
tions and amount of bond of an Assistant Administrator
would be the same as may be required by the Board for other
representatives and employees. The provisions of House Bill
727, p8SSed by the Fiftieth Legislature, 1947, but which
was vetoed by Governor Jester, would have satisfactorily
covered both the authority to subdelegate the power and du-
ties 'and the qualifications of an "Assistant Admiriistrator".
The action of the Legislature in passing such House Bill
727 lends some weight to the conclusion that such was
needed In order to confer the power inquired about on the
Board or Administrator.
SUMMARY
The Liquor Control Board or Administrator
has the authority to n8me an employee 8s
'Assistant Administrator" and to prescribe his
duties, but they cannot legally delegate dis-
cretionary powers to such Assistant without
specific statutor 8UthorFty. Art. 666-5,
V.A.P.C.; Art. 66 t-l2a, Par. (3), V.A.P.C.; 34
Tex. Jur. 459.
Yours very truly
APPROVED: ATTORNEY GEKERAL OF PS,,
YY -*-c3, o&
Willlam 3. Lott-q
Assisttint
ATTORNEY GENERAL
WSL:rt