Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN
May 3, 1939 Tom L. Beaucheap Honorable Seorettrry Texas kubtln,
Dear Sir:
the Searetcry berore the Aaalstant Soorstary '\ *(4).--h at tlmos the Aaalstant Soorvttrry Of State should algn osrtifloatss and other doou- manta rt8 A,sslstant Secretary of Stat8 and at am than other tla.8 when should he sign as Aotlnq awl when aa .5.oorotory of State'?"
Honorclble Tom L. tieauohamp, yl:~y 3, 1 e.79, l'ug1~ 2
It will bo observed that the ertlcla of the statute above referred to provides that the i+snlstcint jeoretory of "shall perform all the duties by lnu to be by the Seorotflry of Stuts rhsn the said Seoratary performed of Stats 1s absent or unable to sot for any reason. Suoh Asslstsnt shall perform ruch other duties ar, shall be rd- qulrrd of him by the :Yeoratary of Stats....w the stutute,
By virtue 0r the prorlalons the auth- ority of the Assistant Seoratarp of State to sot at all de- pends upon the happening or oertain events xesorlbsd by the Eitatute.
By th. seoond oontlngenoy presorlbed by the statute, the Aaelstant Seorstary of State le authorized to and rsqulrsd to perform such duties ae the Seoretory of State shall delegate to him for performanoe. Under thle eeotion of the statute, then, authority of the Assistant Sooretary per- ths Soorotary of form a partloular duty depende upon whethsr State has lnatruoted hl!+ to perform suah duty. The full auth- thus to aot arises orlty of the Aealstant Seorstary rrom the et::tuts lnveatlng him with suoh authority when the la met - that is, whan oontlngsnoy mentioned to perform the partloul,,r aot has been delegated There 1s no unlawrul dalagatlon ot by the Secretary authority the Seoretary of State, ror the Seoretary and the Asalstant of State are both oraaturem of the Seoretary The duty and the authority to aot is an lnoldent cl the law. orrioe, and not 8 personal one, and there 1s nothing to ?rohlblt lsglslaturs from authorlzlog, am it haa in this aot, the atetim l ttaohed p0rronnanoa of oertaln to the 0rri0e 0r Soore- tary of Stats by the Aeslstant of State when the of State shall see fit to roqulrs the perfonaanoe suoh duty the.Aaalstunt of Stats. Y. Prdfer Mahnke et al, (Commission of Appeals, Seotlon 8, opinion adopted by the Ziuprems Court ) 260 S. U. 1031.
On the other hand, hy virtue of the provisions statute, eren though there may no delegetlon of authorltf by the Seoretary yet in the event the Sooretary 1s absent or unable to aot for any reason, Assietant Seors- tary of State 1s authorized by the statutes to perrorm all ths - *3 Honorable Tom L. Beauchamp, May 3, 19?9, Page 3 dutlse law to be performed by the Seoretnry If the oontlngenoy mentioned ln this partloular aeotlon Seoretary state aot 000urs, of the Asolstant to aot oomplete.
The purpoee or the atatute olted above 1s obviously of the dutlea lm- to expedite and faoilitate the perfotmanoe posed by law upon the offloe of Seoretary or State, The aot should be liberally oonstrued so aa to give l fieot to that pur- pose. With this purpose in mind, it is the oplnlon of this de- partment thAt it 1s not neoessary that the Seoretary be absent rroa ths olty before the Asslcttant Seoretsry would be authorized to aot, but, on the oontrary, that his ab- son08 tram the orrloe or the Secretary or State at the time the ror acting arlsee 1s aufflolent oooaslon to authorize An- aot in hls stead. slstant Seoretary Llkewlee, it is the opinion of this department that the phrase “unable to ohould be liberally oonstrued, and thct aot ror any reason” inability of the Seoretary or State to aoti a8 therein oontem: plated, may oonsist ot or be brought about by the volume of other work oommanding ths attention ot the Yeoretary him from aotlng in respeot and preventing to oertaln duties or his orrloe, as well as by phyaloal or mental inability to act.
You are further advised, that, slnoe the aots of
pub110 otfloers are presumad to have been done in the proper 0r legltlaate exerolse powaro, unless the oontrary shown, the raot that the Aaalrtant of St::te aots in a partloular matter glrrs rise to the preeumptlon that the oondltlons pre- sorlbed br atatute authorizing him to aot have arisen.
Proffer f. Mahnke, olted aboro. question above quoted
Your’flrst la thsretore answered in the negative.
Your seoond queotlon 1s answered by the discussion
above.
In anawar to your third question, you are: advised that It the opinion of this deprrtnent the Asuletant Seorstary State, when authorized the happening of any or the oondl- tlona above mentioned to sign oertltlcatee, should sl~n them as *4 !!onorable Ton L. Baauohamp, May 3, 1939, Page 4 Assletant la DO prorlolon There lor suoh an olftoer aa "Aotlng Seoretory of State." If the algna- ture la aa haalstant Seoratary the prarumptlon above it doubtful rafarred to would attaoh; but that auoh a presump- tlon would attaoh td the aot of an aotlng Saoretary of State where no suoh orrloe is prorlded ror by law.
In anmer to your fourth question, you are advised In our opinion whenever ths Asel&xmt Beoratnry of Stnte may af- fix his signature to any dooument by vlrtua of the happening of above rnantloned, he ahould sign the oondltlom of Stats, and in no lmtanoe should ho elgn an Saoratary Stats.
Xe trust that this opinion will annwer all of the in- qulrias to your entire satl8faotlon.
ATTORNEY SfiNEEW. ;F TEXAS Rlohard VI. Falrohlld Anslatant RW:FL
APPROVED:
AT'I'ORNEY GE RAL OF TEXAS w-----