Untitled Texas Attorney General Opinion

The Attorney General of Texas
JIM MATTOX April 25, 1984
Attorney General
Supreme Court Building
P. 0. Box 12548
Honorable Lloyd Criss Opinion No. JM-149
Austin, TX. 78711- 2548 Chairman
612/475-2501 Committee on Labor and Re: Authority of the Adminis-
Telex 910/874-1367 Employment Relations trator of the Texas Employment
Telecopier 5121475.0266 Commission in regard to deeds,
Texas House of Representatives
P. 0. Box 2910 contracts, expenditures, and
714 Jackson, Suite 700 Austin, Texas 78769 other functions
Dallas, TX. 75202-4506
2141742.8944 Dear Representative Criss:
4824 Alberta Ave., Suite 160
In accordance with the Sunset Act, the Sixty-eighth Legislature
El Paso, TX. 79905.2793 enacted legislation for the continuance of the Texas Employment
915i533.3464 Commission with modifications designed to improve the agency's
operation. You have asked our opinion concerning the responsibilities
of the members of the Texas Employment Commission and those of the
,-TX Texas, Suite 700
.louston, TX. 77002-3111
agency administrator under the recently amended act. You also have
713/223-5886
asked three specific questions occasioned by changes in the act which
relate to the organizational structure and administration of the
agency. We believe the act as amended authorizes a person appointed
606 Broadway, Suite 312 to the merit system position of agency administrator to perform the
Lubbock, TX. 79401.3479
6W747.5236
routine, day-to-day administrative functions and authorizes the
commission to administer the act and to take the action it deems
necessary or suitable to that end. We believe the commission retains
4303 N. Tenth, Suite B the final responsibility for the administration of the Texas
McAllen, TX. 78501-1695
Unemployment Compensation Act.
5121682.4547
In the case of most state agencies, the board or commission
200 Ma,” Plaza. suite 400 appointed by the governor employs an administrator or director who, in
San Antonio, TX. 78205-2797 turn, employs the personnel necessary for the operation of the agency.
512/225-4191
Prior to the Sixty-eighth Legislature, the administrative structure of
the Texas Employment Commission differed from the usual structure.
An Equal Opportunity/ The chairman of the Texas Employment Commission was statutorily
Affirmative Action Em~love~ designated as executive director of the agency, but the commission,
acting as a whole, was authorized to employ the persons it deemed
necessary or suitable to administer the agency's duties. See V.T.C.S.
art. 5221b-9; Attorney General Opinion H-979 (1977). How~r, recent
chairmen have not acted as administrator of the agency. Instead, the
commission had chosen to employ an administrator who had no powers or
duties designated by statute. The connnissionhad the authority to
determine the administrative structure of the agency and continued to
select and appoint persons to fill several top administrative
p. 643
Honorable Lloyd Criss - Page 2 (JM-149)
A
positions in the agency. See Texas Sunset Advisory Commission Final
Report on Business and Professional Agencies, Vol. 1 (1983).
The Sixty-eighth Legislature amended articles 5221b-g(d) and
5221b-9, V.T.C.S., to delete the chairman's designation as executive
director and the commission's authority to employ the personnel
necessary to administer the agency. Article 5221b-9, as amended,
added a directive to the commission to appoint a" agency administrator
on the basis of merit to administer the day-to-day operations of the
Texas Employment Commissio", including the appointment and
determination of the duties of all persons necessary to perform the
commission's duties and the development of a system of annual
performance evaluations on which all merit pay for the commission's
employees will be based.
Article 5221b-9 provides, in pertinent part:
(a) Duties and Powers of Commission: It shall
be the duty of the Commission to administer this
Act; and it shall have power and authority to
adopt, amend, or rescind such rules and
regulations, to make such expenditures, require
such reports, make such investigations, and take
?
such other action as it deems necessary or
suitable to that end. Such rules and regulations
shall be effective upon publication in the manner,
not inconsistent with the provisions of this Act,
which the CO~iSSiO" shall prescribe. The
Commission shall determine its own organization
and methods of procedure in accordance with the
provisions of this Act. and shall have a" official
seal which shall be judicially noticed. The
Commission shall appoint a" Agency Administra~
on the basis of merit to administer the day-to-day
operations of the Texas Employment Commission.
The commission may prescribe any specific
qualifications for the position necessary to
comply with federal law. The position of Agency
Administrator is a merit system position.
. . . .
(e) Personnel: The Agency Administrator is
authorized to appoint and prescribe the duties and
powers of all officers, accountants, attorneys,
experts, and other persons as may be necessary in
the performance of the Commission's duties. The
Agency Administrator may delegate to any such
person so appointed such power and authority as
p. 644
Ronorable Lloyd Criss - Page 3 (JM-149)
the Agency Administrator deems reasonable and
proper for the effective administration of this
Act, and may, at the Agency Administrator's
discretion, bond any person handling moneys or
signing checks hereunder. The Agency Adminis-
trator or the Agency Administrator's designee
shall develop a system of annual performance
evaluations based on measurable job tasks. All
merit pay for Commission employees must be based
on the system established under this subsection.
(Emphasis added).
However, section b(b) of House Bill No. 2, Sixty-eighth
Legislature, 1st Called Session, provides:
(b) The person employed on the effective date
of this Act as the agency administrator is
entitled to continue to serve in that capacity at
the pleasure of the commission.
A person employed as agency administrator on September 1, 1983 may
continue to serve at the pleasure of the commission without being
P appointed under the merit system. In the future when the commission
appoints a new administrator, that appointment shall be through the
merit system, and such appointee shall be entitled to administer the
"day-to-day operations" of the agency subject to the overall authority
of the commission.
Article 5221b-g(a), which creates the Texas Employment
Commission, provides that "[tlhe Commission shall consist of three (3)
members" with one representing labor, one representing employers, and
one representing the public generally. (Emphasis added). Under the
amended act, even as to future administrators, the commission retains
the duty to administer the Texas Unemployment Compensation Act and the
power to take the action it deems necessary or suitable for that
purpose, including, among other things, the authority to adopt rules
and regulations and to make expenditures, as well as the authority to
determine its own organization and methods of procedure in accordance
with the act.
You specifically ask first whether the signature of the agency
administrator is legally binding and acceptable on deeds and
contracts. The disposition of state-owned land is a matter over which
the legislature has exclusive control and the power of an agency of
the state to sell and convey state property may be exercised only
under the legislature's authorization. See Conley v. Daughters of the
Republic, 156 S.W. 197, 200 (Tex. 1913);Lorino v. Crawford Packing
co., 175 S.W.2d 410 (Tex. 1943); Attorney General Opinions MW-62
r (1979); C-207 (1964); V-787 (1949); V-320 (1947). The terms of
p.645
Honorable Lloyd Criss - Page 4 (JM-149)
legislative authorization for the sale of land must be strictly
complied with. See State v. Easley, 404 S.W.2d 296 (Tex. 1966);
Wilson v. CountyofCalhoun, 489 S.W.2d 393 (Tex. Civ. App. - Corpus
Christ1 1972, writ ref'd n.r.e.); Attorney General Opinion MI+62
(1979). Material accompanying your opinion request indicates that YOU
are especially concerned about the authority to sell and convey
certain property in the city of Laredo.
I" 1977, the legislature authorized the Texas Employment
Commission to sell and convey property in Laredo by the enactment of
chapter 526. Sixty-fifth Legislature, which reads, in pertinent part,
as follows:
Sec. 2. . . . The Texas Employment Commission
shall have the right to reject any and all bids;
otherwise the highest bid submitted shall be
accepted.
Sec. 3. The three members of the Texas
Employment Commission or a quorum thereof may
execute and deliver a proper deed conveying the
real property sold to the purchaser thereof, the
form of such conveyance to be approved by the
attorney general.
Chapter 526 expressly authorizes the commissio" to determine whether
to reject all bids and authorizes the three members of the commission
or a quorum of those members to execute a deed to convey the property.
Since the terms of legislative authority must be strictly complied
with, we conclude that only the members of the commission, or a quorum
of the members, may execute a contract or conveyance for the property
in Laredo and that the signature of the agency administrator on either
a contract or deed would not be legally binding.
In order for the agency administrator's signature to be
sufficient on a contract of sale or conveyance for other property,
legislative authorization would be required for him, rather than the
commission, to dispose of the particular property.
You also inquire whether the agency administrator may expend
money from the Unemployment Compensation Special Administration Fund.
Article 5221b-22a. V.T.C.S., which creates the fund, provides in
pertinent part that
[tlhere is hereby established as a special fund,
separate and apart from all public moneys or funds
of this State, an Unemployment Compensation
Special Administration Fund which may be used by
the Commission for the purposes of paying costs of
p. 646
Honorable Lloyd Criss - Page 5 (m-149)
the administration of this Act . . . . The State
Treasurer shall be the Treasurer and custodian of
the fund. He shall administer such fund in
accordance with the directions of the Commission,
and the Comptroller shall issue warrants upon it
I" accordance with the directions of the
Comissio" . . . . The Commissio" =Y. by
resolution duly entered in its Minutes, authorize
to be charged against said moneys any expenditures
which it deems proper in the interest of good
administration of this Act, provided the
Commission in such resolution finds that no other
funds are available or can properly be used to
finance such expenditures . . . .
As we have stated, article 5221b-9 contains general provisions
prescribing the duties and powers of the commission. It states that
the commission has the duty to administer the Texas Unemployment
Compensation Act and the power and authority to make such expenditures
as it deems necessary or suitable for that purpose. Article 5221b-22a
is authority to the commission to use the specific fund in question
for the costs of the administration of the unemployment compensation
act. It provides that the commission, by resolution duly entered on
its minutes, authorizes the use of money in the fund for expenditures
which it deems proper in the interest of the good administration of
the act. The state treasurer and comptroller are directed to
administer the fund and issue warrants in accordance with the
directions of the commission. Chapter 1095 of the Sixty-eighth
Legislature, the General Appropriations Act, appropriates to the Texas
Employment Commission in item 5 a maximum amount that may be expended
for the administration of the Texas Employment Commission. See Art.
I-69 at 5804 of the Session Laws. We are not aware of any statutes
which also authorize the agency administrator to expend money from the
Unemployment Compensation Special Administration Fund.
Finally you ask whether the agency administrator is permitted to
submit Attorney General Opinion requests. Article 4399, V.T.C.S.,
provides in pertinent part that
(b) Persons who may request written opinions
include:
(1) the Governor;
(2) the head of any department of the State
government;
(3) the heads and boards of penal institutions;
p. 647
Honorable Lloyd Criss - Page 6 (m-149)
(4) the heads and boards of eleemosynary
i"stitutio"s;
(5) the heads of all other State boards;
(6) regents and trustees of State educational
institutions;
(7) committees of either branch of the
Legislature;
(8) county auditors authorized by law; and
(9) the chairman of the governing board of any
river authority.
. . . .
(d) The Attorney General is hereby prohibited from
giving legal advice or written opinions to any
other than the officers or persons named herein.
It has long been the policy of the attorney general's office to
accept requests submitted by the secretary, the executive director, or
the executive secretary of a board on behalf of the particular board,
but the request should reflect that the board desires the opinion;
See Opinion Request Procedures published in the Digest of Opinions of
the Attorney General of Texas (1970-1981).
SUMMARY
A person appointed to the merit system position
of agency administrator of the Texas Employment
Commission is authorized to perform the day-to-day
administrative functions of the agency, while the
members of the Texas Employment Commission retain
final responsibility for the administration of the
Texas Unemployment Compensation Act and may take
the action necessary or suitable for that
function. In order for the agency administrator's
signature to be sufficient on a contract of sale
or a conveyance of property, legislative
authorization would be required for him, rather
than the commission, to dispose of the particular
property. The Texas Employment Commission is the
entity with authority to expend money from the
Unemployment Compensation Special Administration
Fund. The agency administrator may request
written Attorney General Opinions on behalf of the
p. 648
. 1
Honorable Lloyd Criss - Page 7 (JM-149)
Texas Employment Commissio" if the request
reflects the desire of the commission for such an
opi"io".
\
Attorney General of Tends
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Nancy Sutton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
David Brooks
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
p. 649