Untitled Texas Attorney General Opinion ( 1943 )

This opinionmodifies OpinionNo. O-1126 HonorableLen Alrup ExeoutiveSecretary-Director State Comirrion for the Blind Land Office Austin, Texas Dear Mr. Alsupt OpinionNo. O-5292 Re: Approvalof claims for pay7 ment by State Comvlosio4for the mind. Ue are in receipt'ofyour letter of "cy 6, 1943, inwhioh you sub. nit,the followingquestionfor our opinion: sPleassadvise the State Commissionfor the Blindwhether the Board of the State Conmissionfor the Hlindmey delegateto any of its members or to its executivesecretarythe authorityto approvefor paymentall expenditureswhich may have been authorizedby the State Comnissionfor the Blind." The State Commissionfor the Blind is providedfor in Article320% Vernon’sTexas Civil Statutes(Aots 1931, 42nd Lag. p. 122, oh. 80, as amendedActs 1939, 46th Leg. S.B. So. 462). In Section1, a three member board was originallyprovidedfor but by 1:.B. 362, Reg. Seer. 48th Leg., the membershipof %~e Boardwas increasedto six. A aarefulexamination of the acts relatingto this oomsissionshcwsthat the full responsibility for performingthe dutiesthereinprovidedis vested in the ConmIssionas such. Section1 8s emendedprovidesthat four members shall oo4stitute8 quorum for the transactionof businsss,end that the Comnirsionmay annu- ally elect a Sectetaryand such other employeesas may bs authoriaedby the generalor specialappropriationfor raid Conmission. By Section (a) it is probidedthat: "The State Conmissionfor the Blind shallmaintaina Bureau of Infornvtion. . . The Comnir~i~n shall in its discretionfurnishmaterials,tools and books for the use as a mesn~ in rehibilitating such personsand it my establishworkshopsand salesrooms,and shall have authorityto use any ~receiptsor earningrthat aooruefrom the operationof industrialsohools,ralssrooms,or workshops as providedin thir Chapter. . . The Conmissionmay receivegifts, bequests,or devisesfrom individuals, associationaor corporations, and mry expendthem-in aooordenoewith the provisionsof this Ad.” We have Hon. Lon Alsup, p.ge 2 (O-5292) not attemptedto set out all the authorisation of the,Ctirrion, but quote the foregoingto demonstratethat the responsibility is vested directlyin the C1nmuissio4as such and that discretionaryfunctionsare committedto the Commission. Section3 providesthat: "The State Conmdsrio4for the Blind may appointand fix the compensation of an executivesecretaryand such otherworkers as may be necessspyto make effectivethe purposesof this bet within the rppropriationsprovided.," Ws do not think that this sectionmay be construedas vesting in the executivesecretrryany discretionaryauthoritywhichwould be normallyvest- ed in the Commissionas the he&d of the dep+rtmentor divisionof State gov- ernment. The exeoutivesecretaryis an employeeof the Cdrsion wrkiag under the directionof the Commissionin oarryingout its directions,and he is given no authorityby the statuteindependentof the Conmission. I4 other words, in matters involvingthe exeroiseof discretion,he may act 8s an exeoutiw officerto oarry out and performonly thosethings whereinthe Cornmissionhas exeroisedthe discretion. In Horne ZoologicalArena Compenyva. City of Dallas,45 S.pi.(2d) 714, the court had the followingto say with referenceto the delegationof suth- oritya "The generalrule is that,where the law createsa board to have oharge of the affairsof 8 municipalityor a particularpart thereof,such board may appoint egentsto dhsohargeministerialdutiesnotcellingfor the exeroise of reason or discretion,but it cannot go beyondthis and delegateto othersthe disohargeof dutieswhioh or11 for reason or discretion,end which are regardedas part of the publictrust assumedby the board. The power to exercisediscretionin matters entrustedto such boards cannotbs delegated,surrendered,or barteredaway. w . The psrk board was chargedwith the trust of spendingthe money set / rbiie for the maintenanceof parka, and it couldnot *void its responsibil- ity by delegatingto other8the authorityto act for it in the purobaseof such animalstithoutlimit 8sto the kind of snim8lsto be pxobased or the prioe tobe paid therefor. The trial court correctlyheld thst Jacoby merely by virtue of his authorityas directorof parek did not hsve author- ity to m&e the contractin question." m duo 00.11attenth to the following*tatutes.~ '3 ,, &ticle 4344, R.C. S. 1926, Subdivision4, providesthat the Comp- trollershalls "Requireall aooountspresentedto him for settlementnot otherwiseprovid-, ed for by law to be made on forms prescribedby him, all suoh accountsto be verifiedby affidrvit~ as to their correctness,mnd he may &n.i4ister ~ Hon0 Len. Aloup - page 3 (O-5292) the oath himselfin any c8se in which he my deem it neaessmy,” &+icle 4355 R.C. S. 1925, as' amended,Acts 1931, 42nd Leg., p. 400, oh. 243, providssamong other things: "All claims and account8againstthe State shall be suhnittedon forms pre- scribedby the Comptrollerand in duplicate,when requiredby him except 018imsfor pensions,and shallbe so preparedas to providefor the entering thereon,for the us0 of the Comptroller's Deparkmnt, as wellas other appro- priatematters,the following: "1. Signatureof the herd of the departmentor other psrson responsible for incurringthe expanditurc.c Wc think it clear from the provisionsof Article 32078 ---.- that “-- the -” State “.,S”” Commissionfor the Blind is the head of the Separtment,,V. or Alrini divisionnn of the -4 the State govermnent(StateBoard of Registrationfor Rrof ss Hatter,139 S.W. (2d) 169; Rainayv . ~a104e,141 S.11,?2dj%&%%;:pg (2d] 713) w%hf:r* V* T-* the meaning of Article 4355 55 and be8rs bears the reSpo4sibilitg responsibility for incurringthe expsnditur& oftkhhat deperhnent~ Sevsralopinionshave previouslybeen written by this department upon this subject. The first towhi'chwe referwae renderedDecember4, 1935 8t the requestof the QraeosRiver Conservationmad ReclamationDistrict. It was there ruled that the Saud of Directorsof said Distriotcouldnot del- egate to its agent or a ocxmi+$eeauthorityto lpp-ove expensesincurredby the Districtso 8s to luthoriscthe Comptrollerto issue a warrant. 1twa* pointedout in the opinionthat the Board could delegatepurelyministerial or exeautivsfunction8but that specificauthorieationor approval04 the part of the Boardma8 requiredbefore the expendituresbecame a lawful charge againstany appropriation of Stats funds. 04 March 24. 1936 this deprtmcnt advisedthe St8te Comptrollerthat a majorityof the Board of InsuranoeCommissioners was requiredto 8pprove any and all expenditurespertainingto the various departmentsof insurance exoeptagainstone particularfund. This fundw8s 8n exceptionbecausethe statuteprovidedthat paymentshouldbe made "upon the aertifioateof the chtirmanof the Board of Insumnce Commissioners." An opinionwas also renderedto the Comptrollerof PublicAccounts04 April 1, 1937, concerningths Texas UnemploymentCompensationCommission. The Commissionhad by resolutionattemptedto delegateratherbroad functionsto the AssistantSxeautivcDirectorto executepurchaseorders,approm expendi- tures, etc. The opinionpointedout that some of the things attemptedto be 'delegatedwers ministerialand some requiredthe exercisecd'discretion,end ruled that the lattercould not be delagatedto the AssistantSxsoutivcDirec- tor* but that the Cmmiasion was requiredto exeroirethe necensrrydiscre- tion. Hon. Lon Alsup, page 4 (O-5292) In OpinionNo. O-1126we had befc~eus the questionof *ether the Texas Stats Parks Foardmight delegateto its oecretarythe right to ap- prove claimaagainst the Stat. appropriation for such board. The ruling was that such authoritymight not be delegated. An additionalsuggestion was made in the opinionthat while the board might not delegatethe authcr- ity to approveclaims to a non-memberof the board, it might delegatethie authorityto some member of the board under rules and regulationsto be promulgatedby the board. Ia so far as said opinionexpressesthe oonolu- sion that the board may delegateitr discretionaryauthorityto a member of the board,the sam8 is modifiedto conformto the views herein expressed, for, in our opinion,the principleof non-delegation of discretionary fun&ions is just as applicableto a member of a board or ootissicn as to a non-member. This authorityis vested in t31ecommissionaa suoh and not in its members as individuals. Easedupon the~fcregoing authorities,we concludethat the State Conrmission for the Blind is the head of a deputmantvested with discrati- onay authorityby statute,that it may delegatepurelyministerialact8 to be performedbut may not delegateitr diaorationuy functions;and that the expenditureof moneys appropriatedto it involvesthe sxeroiseof disoretionor judgment. Fpom your question,we understandthat the Commissiondesire*to make a generalauthorization for exponditure8,and delegate to one or more of its individualmembers,or to its executivesecretary,authorityto approveall expend.&tureafor paymentwithout the neaersityof further(IC- tion by a majorityof tha ConnnissionDIn our opinionthis cannotbe done, and we thereforeansweryour questionin the negative. Yours very truly, ATTORliEYGENEFU,OFTEXAS By /a/ Cod1 C. Cammack Cecil C. Cammack Acsistmt CCCwslhnigw APPROTEDId&Y26, 1943 APPHOVED /s/Gerald C, &UI OpinionCommittee ATTORN'EYGEKERALOFTEXAS ByBVfB Chairman