Untitled Texas Attorney General Opinion

August l-9,1955
Hon. J. Earl Rudder Opinion No. s-167
Commissioner
General Land Office Re : Effect of the amendments to
Austin, Texas the Veterans’ Land Act as
passed by the Fifty-fourth
Legislature on the authority
of the Commissioner of the
General Land Office to admln-
ister the Veterans’ Land
Dear Commissioner Rudder: Program.
Your letter requesting an opinion of this office
stated as follows:
“The recent 54th Legislature amended and
greatly strengthened the Veterans’ Land Act
when it passed H.B+ 341. The amendments place
certain requirements and duties upon the sel-
lers and the appraisers of the land, provide
penalties for a violation of the Act, and make
certain other changes affecting the administra-
tion of the Veterans’ Land Program.
“Under Article 5421m, the Veterans’ Land
Act, the administrative details of the Veterans’
Land Program are primarily the duty of the
General Land Office and its employees, Because
of this, it has been the established practice
of the Veterans’ Land Board almost from its in-
ception that the Commissioner of the General
Land Office the Chairman of the Board, shall
have the authority to administer and supervise
the functioning of the Program. In fact, we can
find no indication that the Board as a whole has
acted on the administrative details of the Pro@;-
ram sinae a very early date, but has acted only
on matters of policy and on those items on which
the Constitution and Statute require full Board
action.
“As the amendments to the Veterans’ Land
Act go into effect September 6, 1955, we would
Hon. J. Earl Rudder, page 2 (S-167)
like an opinion from your office as to
whether these amendments will make it
necessary to change this established
practice or may the Commissioner of the
General Iand Office still be vested with
the authority for administering the Vet-
erans' Land Program?"
The Veterans' Land Board and Veteransl~Land Fund
were created by the provisions of Section 49b Article III
of the Texas Constitution, adopted at an elecF.
ion on Novem-
ber '7,1946. The first legislative enabling act passed in
1949; It was amended in 195'1,1953, and just recently in
195‘5,and is codified in the statutes as Article %21m. The
purpose,of the Veterans' Land Program is to provide a method
by which Texas veterans of military service may purchase
land from the State at a low rate of interest, with payments
spread over a long period of time.
The constitutional duties imposed upon the Board
are to issue bonds, and to expend the Veterans' Land Fund,
which is created by the issuance of these bonds, for the
purpose of purchasing,land. Sec. 49b, Art. III, Tex.Const.
Article 5421m requires an official resolution by the Board
in only two general situations which are matters relating
to the issuance of the bonds (&ecs. 3 and 41, and in matters
dealing with forfeiture when the veteran purchaser defaults
in his payments. (Sec. 19). All other references in the
Act to "the-Board" relate to procedural and administrative
details. The amendments passed by the recent 54th Legisla-
ture do not add to the requirements for formal action by the
Board. The substance of the amendments may be handled by
rules and regulations, or in an administrative capacity.
Section 21 of Article !?+2lmempowers the Board to
make and promulgate such rules and regulations as may be
necessary for the proper administration of the Veterans' Land
Act; thus, the Board also acts on matters of policy so as to
provide for ,the efficient administration of the Act.
The first Board meeting was in the General Land
Office on June 13 1949, with Honorable Beauford Jester,.
Governor, Honorable Price Daniel, Attorney General, and Bascom
Giles,,Commissioner of the General Land Office, present. Com-
missioner Giles was elected as Chairman, and he named his Chief
Clerk, Mr. Alvis Vandygriff, as Executive Secretary of the
Board, which actlon was approved by a majority of the~Board.
In the following months the Board adopted a resolution which
Hon. J. Earl Rudder, page 3 (S-167)
designated the Chief Clerk of the General Land Office to act
as Chairman of the Veterans’ Land Board in the absence of
the Chairman, so that the functions of the Board could go for-
ward without interruption. It is significant that neither
of the other members was selected Chairmen in the Commission-
er’s absence; the chairmanship was left in the General Land
~OffiCfJ. From its very inception, therefore the Board recog-
nized that the Veterans * Land Program is pr!marily a function
of the General Land Office, and throughout its history the
Board has acted purely as a policy-making body with the admin-
i,;;,;;ionof the Program being conducted by the Land Commis-
.
Such departmental construction was based upon the
fact that Article 542lm reflected a legislative intent that
the Land Commissioner should play a dominant role in the oper-
ation of the Program. Section .25 of the Act provides that
the Executive Secretary and Assistant Executive Secretary are
to be nominated by the Commissioner of the General Land Office
and approved by the Board. This section further provides that
all other employees of the Veterans’ Land Board are to be se-
lected by the Commissioner, and by him alone. The Act further
states that all employees %hall be deemed to be the employees
of the General Land Office” and civil and criminal laws regu-
Iating the conduct and relat ions of the employees of the General
Land Office apply in every manner to the employees of the Board;
all documents and papers pertaining to the Veterans’ Land Prog-
ram are required to be kept In the General Land Office. Penal
provisions apply to documents of the Veterans’ Land Board in
the same manner as to documents of the General Land Office.
An examination of the Departmental Appropriation Bill (Acts
1953, Ch. 81, pp. 240-243; H.B. 140, 54th Leg.), reveals that
the appropriation for the Veterans’ Land Board is under the
broad heading of the “General Land Office,” and its sub-total
is added into an item called “Grand Total, General Land Office.”
From these facts there is a clear indication by the Legisla-
ture that the Program is to be primarily a General Land Office
function.
Thus, from 1949 until December of 195’4,as pointed
out in the request, it was the established practice of the
Veterans’ Land Board that the Commissioner of the General Land
Office was authorized to administer the administrative details
and functions of the Veterans’ Land Act. Then, on February
7 1955, following the resignation of the former Land Commis-
s1oner and the appointment of the Honorable J. Earl Rudder as
his successor, the Veterans t Land Board passed a resolution
under its rule-making authority which again placed the respon-
sibility for the operation and functioning of the Program
Hon. J. Earl Rudder, page 4 (s-167)
upon the Commissioner of the General Land Office. Matters
of policy change, and those constitutfonal and statutory
‘functions requiring full Board action were excepted from
the authority of the Commissioner of Ehe Gener,alLand Office
and retained by the ,Board.
We believe that this was a valid authorization for
the,following reasons:
(1) ,From the language and provisions of Article
$21m, it is apparent that it was the original intent of the
Legislature that the Veterans1 Land Program was one which
could be best administered by the General Land Office;
(2) The~Legislature was on notice of the depart-
mental construction placed on the Act by the Veterans’ Land.
Board, and the Land Commissioner and that the Commissioner
was carrying out the administraE*
lve details of thenProgram.
The Leg,islatureamended the statute in 1951, 1953, and again
in 1955, but did not change the general method of operating
the Program. In fact, in 1951 the Legislature validated all
act,ionstheretofore taken by the Board, which would include
authorizing the Commissioner to administer the Program; and
in 1955 the Legislature refused to accept amendments to the
Act which w~ouldhave prevented the Board from au-thorizing
the Commissioner to administer the reprogram;
(3) Those matters which have been delegated to
the Commissioner are ministerial and adminfstrative in nature.
It is believed that the Legislature originally in-
tended the Veterans’ Land Program to be administered by the
Commissioner of the General Land Office for the‘reasons, as
pointed out above, that the Commissioner was authorized to
nominate the Executive Secretary and Assistant Executive Sec-
retary of the Board; he, and he alone was authorized to hire
and fire all other employees who mighz work on Veterans’ Land
matters; these employees were designated by the Legislature
as employees of the General Land Office, subject to the same
civil and criminal laws regulating the conduct and relations
of the employees of the General Land Offfce; all the papers,
records, and archives of the Board were required to be depos-
ited and .kept in’the General Land Office; and, finally the
appropriation for the Veterans’~Land Board was includeA,~
in the
appropriation for the General Land Office.
As point,edout above, the only constitutional duties
specifically imposed upon the Veterans’ Land Board are to is-
sue bonds and to expend the Veterans 1 ‘Land Fund created by the
Hon. J. Earl Rudder; page 5 (s-167)
issuance of these bonds for the purpose of purchasing land
;;tF;nsold to veterans. Art. III Sec. 49b, Texas Consti-
. The Veterans’ Land Act c&t. 5421m, V.C.S.), re-
quires a resolution by the Board only for the issuance of
bonds (Sets. 3 and 41, and in matters dealing with forfeit-
ure (Sec. 19). Inno other instance does the Act, including
the new amendments, spell out a requirement for formal Board
action. This gives rise to the well lmown legal doctrine
of “expressio unius est exti1usi.o
alterius” (the expression
of one thing is the exclusion of the other) to the effect
that as speoific resolutions are required in these limited
Instances, formal Board action is therefore not required in
any other instance.
In this respect the statute under question differs
very materially from Article 5421c-3 V.C.S., which estab-
,lishe,sand sets forth the duties of che School Land Board,
composed of the same members as the Veterans’ Land Board.
Section 4 of that statute specifically states that “the du-
ties of the School Land Board shall be to set all dates for
the leasing and the sale of surveyed lands, and to determine
prices at which any land whether surveyed or unsurveyed,
shall be leased or sold, and to perform any other duties that
may be imposed upon them by law. . .“j Section 6 of that
statute further provides that “the School Land Board shall
keep a record of its proceedings to be called its Minutes
which shall include a docket on which the secretary shall en-
ter all matters to be considered by the Board. . .‘I;Section
8 specifically requires that “the Minutes shall show the
fact of acceptance of a bid or the rejection of a bid and the
approval of the Minutes will constitute the approval of the
act of acceptance or the act of refusal. . .‘I;Section 10
provides that “all awards or leases shall be issued by the
Commissioner of the General Land Office in accordance with the
Minutes as approved by the School Land Board”; Section 11 re-
quires that “it shall be the duty of the School Land Board to
advise the Commissioner in all matters submitted to it for
SUC: purpose” and Section 13 gives the authority to the
j
School Land Board to accept or refuse any and all bids. Sec-
tion 14 provides that all functions, powers, rights, and du-
ties that were vested in the old Board of Mineral Development
are transferred to and vested in the School Land Board. The
statute creating the Board of Mineral Development provided
that no business should be “transacted by the Board except at
a meeting of such Board attended by two or more members, of
which meeting notice to all other members shall have been given
in writing. . ., and all orders or contracts made or entered
into by said Board shall only be authorized at such a meettig.
. . .I1(Art. 5421c, Sec. 9). The Veterans’ Land Board statute,
Hon. J. Earl Rudder, page 6 (s-167)
before amendment by the %th Legislature,,did not even re-
quirethat minutes be kept of meetings of the Board.
Both the statute establishing the School Land,
Board and the statute creating the Veterans’ Land Board au-
thorize these Boards to meet on the first and third Tues-
days of each month. Perhaps it is because of this fact that
some confusion has arisen as to whether the Veterans’ Land
Board ever actually met and transacted any business. From
a reading of the School Land Board minutes and from the tes-
timony given by various state officials before investigat-
ing committees, It is apparent that the members went to the
meetings of the School Land Board and conducted School Land
Board business. They were therefore available on those
days to discuss matters of Veterans’ Land Board policy, and
to take action in those instances in which the statute re-
quired them to do so. On numerous occasions they dieddis-
cuss and transact business relating to the Veterans’ Land
Board. However, it is seen from the various affidavits
filed with the Veterans 1 Land Board that the members, al-
though they were present and on numerous occasions did act
on matters of policy never did take any action on thenad-
min@trative and minIsterial details of the Program. This
was the responsibility of the Commissioner and the Board
proper did not act on these matters. The affidavits do not
state that there was never a meeting of the Veterans’ Land
Board, but they state that the members never considered or
acted upon these detailed matters of administration.
It is believed that if the Legislature had intend-
ed that the Veterans’ Land Board should have to pass on each
application and sale, it would have specifically required a
formal resolution of such action, or that minutes be kept
and such action to be entered in the minutes of the Board, in
much the same manner as it did in the statute creating the
School Land Board. This it did not do.
Certainly the Legislature anticipated the great num-
ber ot Texas veterans who would want to participate in the
Program. Practical considerations show that the Legislature
could not have intended that the Board superintend every pur-
chase and sale made under the Act. During the five and one-
half years of the operation of the Veterans’ Land Program,
some 20;OO0 veterans’ applications have been filed. As there
are four principal steps involved in the processing of each
application, it is apparent that it would be impossible for
the Board to have passed on these more than 80,000 separate
items, particularly when the Legislature is presumed to have
known that two members of the Board, the Governor and the
Hon. J. Earl Rudder, page 7 (s-167)
Attorney General each serve on many other State Boards and,,~
commissions in acl
dition to the heavy duties of their own
elective offices.
Thus it is recognized that the Legislature intended
thatthe Board members be dependent upon employees of the
General Land Office for matters relating to the Program. Such
matters include surveying, appraisals of the property, title
examination, all paper work, enforcing Board rules and regu-
receiving installment payments and, in fact, any and
he necessary steps to process or check a veteran’s
.
As the Veterans’ Land Program was so tied to the
General Land Office by the statute, it naturally follows that
the Veterans’ Land Board should make the Commissioner of the
General Land Office responsible for the administrative de-
tails of the Program. The statute does not prohibit this ac-
tion and, in fact, Section 21 of the Veterans! Land Act au-
thorizes the Board to make and promulgate such rules and regu-
lations as may be necessary for the proper administration of
the Act. The departmental construction placed on the itatute
by the Board should be followed if it is reasonable. tanford
v. Butla 142 Tex. 692, 181 S.W.2d 269 (1944). It is element-
ary in co&truing statutes that the courts must ascertain and
g~iveeffect to the legislative intent, and in determining the
intent the courts will look to the entire Act and not to any
one phrase, clause, or article. Popham v. Patterson 121 Tex.
615, 51 S.W.2d 680 (1932). It is believed that the Depart-
mental construction placed on Article 542lm by the Veterans’
Land Board and the General Land Office appears to be a reason-
able construction of the Act. The prior departmental con-
struction will be given great weight, particularly where the
Legislature has met since the adoption of the departmental
construction, and has not changed the statute in this regard.
The Legislature could have specifically separated the activi-
ties of the General Land Office and the Veterans’ Land Board,
or they could have provided separate facilities and employees
for the Board, rather than making the functions of the Veter-
ans* Land Program dependent upon the employees and facilities
of the General Land Office. But, on the contrary, the Legis-
lature has amended the Veterans’ Land Act three times since
the adoption of this particular departmental construction and
has not altered this procedure or construction. The law pre-
sumes that the Legislature knew of the construction placed on
the Act by the executive department administering the Act and
~furtherpresumes that the Legislature intended, by reenacEment
of the Act, that the departmental construction should continue.
Hon. J. Earl Rudder, page 8 (S-167)
In addition, the Legislature, in 1951, passed
a statute which specifically validated & actions there-
tofore taken by the Board. This had the effect of ratify-
ing or validating the Board’s action in authorizing the
General Land Commissioner to be responsible for the admin-
istration of the Veterans’ Land Program. Acts 1951, 52nd
ch. 324, Sec. 25, p. 550; Dr Land & Cattle Co.
@, 68 Tex. 526, 45 S.W. 864;$??ex.Jur. 461; 73 Cyi.S.
.
Particularly persuasive on the matter of legis-
lative intent is the action of the recent 54th Legisla-
ture. Several amendments to the Veterans’ Land Act were
offered in the Legislature which would have prohibited the
Veterans Land Board from authorizing the Land Commissioner
to administer the Program. The texts of these amendments
were as follows:
1. “No rule or regulation shall ever be
promulgated which will result in the delega-
tion of any responsibility or authority away
from the members of the Board who are charged
with the operation of the Board.”
2. *‘Theterm ‘Board’ as used in this Act
shall be construed for the purpose of this Act
to mean all the members of the Veterans’ Land
Board or a majority of the members thereof.”
3* “No veterans’ land transaction shall
ever be valid without receiving approval of
all members of the Board with such approval
vote by all members individually being shown
in the Minutes of the Board as a permanent
record of the Board.”
4. “No checks shall ever be issued by the
State Comptroller or any other authorized State
agency in connection with or pertaining to Vet-
erans’ Land Board transfers or purchases for
veterans without the Comptroller or other author-
ized State agencies being furnished certified
copies of the Minutes showing votes of the
Board’s approval of such authority for expendi-
ture in connection with veterans’ land transac-
tions.”
Ron. J. Earl Rudder, page 9 (s-167)
The Le islature-refused to ado t these particular amend-
6th Leg., 19551,and thereby
R.B. 341, Acts of the 5’
ment s ts
endorsed and gave its approval of the administrative pro-
cedure and departmental construction adopted by the Board.
Certainly, this is as clear evidence as possible of the
legislative intent relative to this matter.
Finally, the action of the Veterans’ Land Board
In authorizing the General Land Commissioner to be respon-
sible for the operation and functioning of the administra-
tive details of the Veterans’ Land Program is valid because
those matters are purely ministerial and administrative,
and may be properly delegated to him by the Board. While
it is a well-settled rule of law that a State board or
agency may not delegate any of its authority which involves
the exercise of discretion, it is equally well-settled that
those matters of a purely mechanical, ministerial, adminis-
trative, or executive nature, may be properly delegated by
such board or agenoy. Mechem, Public Offices and Officers
p. 370;aTh;oop, Public Officers 5 540. McQuillin ’
D 1 oroorationg’ Sec. 1014?’ p?t82* b7 C J S. 348;
Attorney General’s OpiAions Nos. 015667, Vi974, G&36, and
V-286.
An act is none the less ministerial because the
person performing it may have to satisfy himself that the
state of facts exists under which it is his right and duty
to perform the acts. This proposition may be illustrated
by several cases. An officer authorized, upon certain con-
ditions, to issue or revoke licenses to foreign insurance
companies enabling them to transact business within a State,
acts ministerially in issuing or revoking such a license,
although he is required, in such case, to ascertain the ex-
istence of the facts upon which his authority is founded.
State v. Doyle, 40 Wis. 174. The issuing and delivering of
a patent to land, after the right thereto is complete, is a
ministerial act. Simmons W ever 101 U.S. 260. County,
officers, in bringing a sulk f% thi benefit of the county,
and executing an injunction bond therein act ministerially.
@&&&on C untv v Bovd, 64 MO. 179. i District Clerk
acted minist~rially’in ap&oving a surety on a garnishment
bond, even though he did exercise a degree of discretion
when he ascertained the solvency of the suretyvbyFFquiry
and examination of the county records. Be.nae rstec
U., 47 S.W.2d 862 (1932). The act of a city in deleiat-
ing authority to a committee by city ordinance to lease an
opera house was only ministerial, even though the committee
could lease “on such terms and conditions as they may deem
expedient”, as this language involves simply those minister-
ial acts necessary to perform the act of leasing. Citv of
Hon. J. Earl Rudder, page 10 (s-167)
BLddeford v. Yates, 72 A. 335. A city plaster inspector
acted ministerially in passing on applications, even though
he had to ascertain that the application conformedtto2``
requirements of a city ordinance. Hatz v. Linauis
N.W. 260 (1927). A city council delegated the powes to a
committee to grant or revoke restaurant licen,ses,the test
being, “public welfare” ; the court held that this was not
the delegation of a discretionary power, but instead was
only a ministerial act involving a determination of facts in
accordance with which the administration of the ordinance
would be administered. Prawdzik v. Citv of Grand RaaiQ 21
N.W.2d 168. The issuance of a liquor license was ministir-
ial even though “a necessity may exist for the ascertain-
menc from personal knowledge, or by information,derived from
other sources, of’the state of facts on which &he perfgrmsnce
of the act becomes a clear and spesific duty Land thid does
not operate to convert it into a Ldiscretionary acti.”
Grieder v. Tallv 77 -A.L.A.422. The exercise of power by a
board of arbitraiors to fix valuation of property was a tnin-
isterial act. Allied Mortgage Co. v. Gilbert 9 S.E.2d 913.
A decisi,onof inspectors or judges of an elec;ion, as tomthe
admission of a vote; or of county canvassers as to the result
of an election; and the making of returns by election offi-
cers; are all ministerial acts. Peoale v. Van Slvck
(N.Y.) 297; Peoole v. Pease, 27 N.Y. 45. Thus, whill ~h~“``w
is well-settled that a discretionary act may not be delegated,
and a.ministerial act may be delegated, as a matter of fact
it is often discovered that in applying these principles of
law there are many acts held.to be ministerial which take in
a certain amount of the element of judgment or discretion.
Those matters of policy which require discretion
and deliberation on the part of the Board members were not
made the responsibility of the Commissioner, and the full
Board still acts on these matters. Those matters on which,the
Constitution and statute specifically require full Board ac-
tion are also still acted upon by all.members of the Board.
It is those administrative and ministerial details in carrying
out the purpose of the Veterans’ Land Program, which do not
require any exercise of discretion, deliberation, or judgment,
that the Commissioner has been authorized to supervise. These
acts include processing and checking the veteran’s application
to purchase, appraisals, abstract of title, commitment papers,
platting, ,andthe contract of sale, to see that they meet the
requirements of Article 5421~1 and the rules and regulations
adopted by the Board’ as policy matters. There are other func-
t ions, such as the receipt of installment payments and the
execution of contracts and deeds, but all of these activities
are purely perfunctory and require no discretion or delibera-
tion.
Hon. J. Earl Rudder, page 11 (~4.67)
We believe that the same rules will apply to the
Act after the addition of the amendments as contained in H.B.
341. As pointed.out above, the Legislature refused to adopt
those,amendments which had as their purpose,restricting the
Veterans’ Land Board and prohibiting a delegation of the au-
thority for,administering the details of the Program. Ger-
tainly this is an indication that the Legislature knew of the
procedure adopted by the Board and that by refusing to adopt
these ~amendments,the Legislature indicated that this proced-
ure should cantinue. The Commissioner may be authorized to
administer those matters in the amendments that set-fbrth ad-
ditional administrative steps and details. In those in-
stances where the amendments require a question of policy to
be determined by the Board, the Commissioner may be author-
ized to administer that policy once it has bee~ndetermined by
the Board. We can find no instance in H.B. 341 tha~trequires
additional formal action by the Board in the everyday admin-
istration of the Veterans’ Land Program. We are therefore of
the opinion that the Commissioner of the General Land Office
may still be authorized to administer the Veterans’ Land
Program.
Perhaps a comparison between the,Veterans’~Land
Board and various other State agencies is in order to show ‘,
how the Board d,iffersfrom those agencies of which the stat-
utes require specific action of the members of the agency,
and in those instances where the statutes do not require spe-
cific action by the members of such agencies. We have already
pointed out the contrast between the Veterans’ Land Board and
the School Land Board wherein the statute establishing the
School Land Board requires specific action by the School Land
Board in numerous,situations, while the Veterans’ Land Board
is not .so required by statute. Asid.efrom the distinguishing
characteristics and standards between these two Boards as set
down by the Legislature and pointed out above the very nature
of the transactions involved clearly distinguish the functions
and activities of these two Boards. The matters relating to
the Veterans’ Land Program are such that dictate daily action
and adhering to closing and other time schedules in order to
furnish service to veteran applicants. On the other hand,
matters concerning school lands are completely different in na-
ture, and there is no necessity for daily actions of approval
or disapproval. The sale of relatively small excess acreages,
the purchase of unsurveyed school lands, the lease ofttide-
lands,,and the.consideration of pooling and unltization.agree-
ments are matters that can be handled on a bimonthly docket.
These matters are by their very nature such,that canbe taken
up and considered in full Board action.
Hon. J. Earl Rudder, page 12 (s-167)
The oontrast between the functions of the Veterans’
Land Board and the Railroad Commission is broad and apparent.
The most obvious distinction between the Railroad Commission
and the Veterans’ Land Board is that the former is composed
of members selectedto perform full-time duties as Railroad
Colhmissioners,while the members of the Veterans’ Land Board
obviously cannot devote their full time to any single agency
of which they may be ex-officio members to the exclusion of
all other duties imposed upon them by the Constitution and
statutes of the State of Texas. Perhaps less obvious but
more basic, is the fact that these matters delegated $0 the
Commissioner, wholly unlike the duties of the Railroad Comis-
sion; are such that they do not require the degree of discre-
tion deliberation, or judgment exerted by the Railroad Com-
miss1oners.
To illustrate this premise, it is important to note
that the orders of the Railroad Commission are grounded upon
many teahnical considerations which are brought to light by
public hearings. Often the questions presented are suscepti-
ble to more than one solution; therefore, when an order of the
Commission ‘is judicially reviewed, the test is not whether the
Commission reached a proper fact conclusion on the basis of
conflicting evidence and conflicting theories, but whether it
acted arbitrarily and without regard to the facts. As the Cotn-
mission reaches its decisions on the basis of facts developed
at its hearings, this action necessarily involves the exercise
of deliberation and judgment.
Because of its broad and elaborate powers over all
aspects of transportation and oil and gas production, the Rail-
road Commission must of necessity, maintain a large staff.
Its examiners hold literally thousands of public hearings each
year in order to perform the myriad duties imposed upon the
Commissioner. For example, in oil and gas matters the Comis-
sion must determine from evidence developed at public hearings
the nature and extent of underground oil-bearing structures;
reservoir pressures; the feasibility of secondary recovery pro-
ms,; repressuring problemsj efficient drilling methods j market
demand for oil and gas; questions of waste; the protection of
correlative rights; and many additional questions.
Its regulation of motor carriers requires the Rail-
road Commission to determine, among other things, whether the
applicant for a permit to operate commercially over our highways
is financially able to perform the service and is financially
responsible; whether the proposed operation will promote the con-
venience of the public and whether it is necessary; whether the
applicant’s equipment conforms to established safety standards;
Hon. J. Earl Rudder, p~ageJ.3 (s-167)
and whether the highways over which the applicant seeks to
operate will be unduly congested or damaged by the proposed
service.
Obviously, these are questions requiring the expert
appraisal of a specialized body and each commissioner has the
benefit of the expert counsel and judgment of his colleagues.
Each commissioner might rationally entertain a different view
as to what decision should be made in a particular case be-
cause of his particular technical background as a lawyer, pe-
troleum engineer, etc.
Thus it can be seen that the decisions and rulings
of the Railroad Commission are such on which there can exist
differences of opinion based on different interpretations of
law and fact--such decisions and rulings which require the
exercise of discretion and deliberation.
Such is not the case with the matters to be consid-
ered under the Veterans* Land ,Act. In the first place, any
Texas veteran is entitled to the benefits of the Act. There
is no discretion to refuse an application so long as the ap-
plicant has complied with the provisions of the Veterans’ Land
Act and the rules and regulations of the Board. Next, where
an appraisal is made of the land sought to be purchased, such
appraisal is made by an employee of the Land Commissioner.
The members of the Board cannot make a personal inspection of
each tract of land requiring appraisal and they must, there-
fore, accept the judgment of the appraIser, an employee of the
General Laud Office, as to the value of the land. The Board
must also accept as correct the title opinions of the lawyers
employed by the Commissioner to examine titles to the land
purchased by the State. The members of the Board could cot
possibly examine all the abstracts to determine if the employ-
ees of the General Laud Office had reached a sound conclusion
as to the status of these titles. Again this is a matter
Iscretion. They must
over which the Board could exercise no~,d
accept the judgment of the examining attorney because that is
the only evidence available.
Following examination of title, the attorney has the
field notes and the deed checked by Land Office draftsmen, and
refers all papers to the Executive Secretary who, in conjunc-
tion with the Land Commissioner, reviews the file and obtains
the warrant from the State Comptroller. The warrant and deed
to the State are sent to the attorney who examined the title
and he closes the sale and records the deed. The remaining
functions are purely perfunctory--the receipt of installment
payments and the executi~onof contracts and deeds to the veteran
Hon. J. Earl Rudder, page 14 (S-167)
by the Chairman of the Board, the Land Commissioner. The
performance of these functions likewise requires no discre-
‘tion or deliberation on the part of the Board members.
With other State boards and agencies it is a common
practice for their activities to be restricted to policy-
making, while a single executive administers the affairs of
the Board. Examples could be multiplied, but a few should
suffice:
The State Board of Public Welfare spends $125 mil-
lion a year--more than is contained in the entire Veterans’
Land Fund--and the actual spending of the money is an adminis-
trative matter entirely in the hands of the Executive Director
and his staff.
The nine-man State Game and Fish Commission decides
matters of general policy and the aministration of the Depart-
ment , supervision of Game Wardens, and the expenditure of hun-
dreds of thousands of dollars yearly is in the hands of the
Executive Secretary.
The administration and enforcement.of State liquor
laws is handled by an Administrator and not by the State Li-
quor Control Board.
The Texas Aeronautics Commission is a policy-making
body, but its program is administered by its Director.
There was a day when the three-man Public Safety
Commission passed on every expenditure made by the Department.
The Commission now establishes general policies with the ad-
ministration of the State’s far-flung police system and the
expenditure of its funds in the hands of the Director of the
Department of Public Safety.
The Hoover Commission’s Task Force on the regulatory
agencies stressed the need for further delegation ,of authority.
They recommended that each commission explore more fully the
possibility of further delegation to its staff of authority to
handle routine and preliminary matters which should not require
the specific attention of the Commission as a whole.
In the final analysis, the administration of govern-
ment is based on trust. It has to be. There are physical limi-
tations on what any one man can do; that’s why staffs of employ-
ees are provided by the Legislature to handle administrative
details. In the case of the Veterans’ Land Board, the Land Com-
missioner is more than an employee. He is a State official
.
Hon. J. Earl Rudder, page 15 (s-167)
elected by the people, and a member and the Chairman of the
Veterans’ Land Board. He is the man authorized by statute to
sign the deeds, to hire and to provide the employees, and to
keep all Board records in his office. To him the Veterans’
Land Board has delegated the authority to administer the Pro-
gram. It is our opinion that such action is valid, because
such was the intent of the Legislature originally; that the
Legislature subsequently ratified and approved this action;
end that those functions with which he is responsible are
purely administrative and ministerial, and come within the
general rule that ministerial acts of a State board or agency
may be delegated to another.
Further, we are of the opinion that the amendments
to the Veterans’ Land Act as contained in H.B. 341 do not
make it necessary to change this practice and the Veterans’
Land Board may continue to authorize the Commissioner of the
General Land Office to administer the Program.
The amendments to Article 5421m the Veterans’
Land Act, passed by the 54th Legislature, do not
make it necessary to change the established prac-
tice of administering the Veterans’ Land Program,
and the Commissioner of the General Land Office may
still be vested with the authority for administering
the Veterans’ Land Program.
PPROVED: Yours very truly,
kiTi, JOHN BEN SHEPPERD
Attorqey General r\
‘b&l 8. Bhrney
Special Assistant
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