Case Information

*1 This opinion modifies Opinion No. O-1126 Honorable Len Alrup

Exeoutive Secretary-Director

State Comirrion for the Blind

Land Office

Austin, Texas Opinion No. O-5292

Dear Mr. Alsupt

Re: Approval of claims for pay7 ment by State Comvlosio4 for the mind.

Ue are in receipt'of your letter of "cy 6, 1943, inwhioh you sub.

nit, the following question for our opinion:

sPleass advise the State Commission for the Blind whether the Board of the State Conmission for the Hlind mey delegate to any of its members or to its executive secretary the authority to approve for payment all expenditures which may have been authorized by the State Comnission for the Blind."

The State Commission for the Blind is provided for in Article 320% Vernon’s Texas Civil Statutes (Aots 1931, 42nd Lag. p. 122, oh. 80, as amended Acts 1939, 46th Leg. S.B. So. 462). In Section 1, a three member board was originally provided for but by 1:. B. 362, Reg. Seer. 48th Leg., the membership of %~e Board was increased to six. A aareful examination of the acts relating to this oomsissionshcws that the full responsibility for performing the duties therein provided is vested in the ConmIssion as such.

Section 1 8s emended provides that four members shall oo4stitute 8 quorum for the transaction of businsss, end that the Comnirsion may annu- ally elect a Sectetary and such other employees as may bs authoriaed by the general or special appropriation for raid Conmission.

By Section (a) it is probided that: "The State Conmission for the Blind shall maintain a Bureau of Infornvtion . . . The Comnir~i~n shall in its discretion furnish materials, tools and books for the use as a mesn~ in rehibilitating such persons and it my establish workshops and salesrooms, and shall have authority to use any ~receipts or earningr that aoorue from the operation of industrial sohools, ralssrooms, or workshops as provided in thir Chapter . . . The Conmission may receive gifts, bequests, or devises from individuals, associationa or corporations, and mry expend them-in aooordenoe with the provisions of this Ad.” We have *2 Hon. Lon Alsup, p.ge 2 (O-5292)

not attempted to set out all the authorisation of the, Ctirrion, but quote the foregoing to demonstrate that the responsibility is vested directly in the C1nmuissio4 as such and that discretionary functions are committed to the Commission.

Section 3 provides that: "The State Conmdsrio4 for the Blind may appoint and fix the compensation of an executive secretary and such other workers as may be necessspy to make effective the purposes of this bet within the rppropriations provided.,"

Ws do not think that this section may be construed as vesting in the executive secretrry any discretionary authority whichwould be normally vest- ed in the Commission as the he&d of the dep+rtment or division of State gov- ernment. The exeoutive secretary is an employee of the Cdrsion wrkiag under the direction of the Commission in oarrying out its directions, and he is given no authority by the statute independent of the Conmission. I4 other words, in matters involving the exeroise of discretion, he may act 8s an exeoutiw officer to oarry out and perform only those things wherein the Cornmission has exeroised the discretion.

In Horne Zoological Arena Compeny va. City of Dallas, 45 S.pi. (2d) 714, the court had the following to say with reference to the delegation of suth- oritya

"The general rule is that, where the law creates a board to have oharge of the affairs of 8 municipality or a particular part thereof, such board may appoint egents to dhsoharge ministerial duties notcelling for the exeroise of reason or discretion, but it cannot go beyond this and delegate to others the disoharge of duties whioh or11 for reason or discretion, end which are regarded as part of the public trust assumed by the board. The power to exercise discretion in matters entrusted to such boards cannot bs delegated, surrendered, or bartered away.

w . The psrk board was charged with the trust of spending the money set rbiie for the maintenance of parka, and it could not *void its responsibil- / ity by delegating to other8 the authority to act for it in the purobase of

such animals tithout limit 8sto the kind of snim8ls to be pxobased or the prioe tobe paid therefor. The trial court correctly held thst Jacoby merely by virtue of his authority as director of parek did not hsve author- ity to m&e the contract in question."

m duo 00.11 attenth to the following *tatutes.~ '3 ,, &ticle 4344, R.C. S. 1926, Subdivision 4, provides that the Comp- troller shalls

"Require all aooounts presented to him for settlement not otherwise provid-, ed for by law to be made on forms prescribed by him, all suoh accounts to be verified by affidrvit~ as to their correctness, mnd he may &n.i4ister ~

Hon 0 Len. Aloup - page 3 (O-5292)

the oath himself in 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, providss among other things:

"All claims and account8 against the State shall be suhnitted on forms pre- scribed by the Comptroller and in duplicate, when required by him except 018ims for pensions, and shall be so prepared as to provide for the entering thereon, for the us0 of the Comptroller's Deparkmnt, as wellas other appro- priate matters, the following:

"1. Signature of the herd of the department or other psrson responsible for incurring the expanditurc.c Wc think it clear from the provisions of Article 32078 that the State ---.- “-- -” “.,S”” Commission for the Blind is the head of the Separtment or division of the ,,V. Alrini nn -4 the

State govermnent (State Board of Registration for Rrof ss Hatter, 139 S.W. (2d) 169; Rainay v . ~a104e, 141 S.11, ?2dj%&%%;:pg 141 S.11, (2d] 713) w%hf:r* V* T-* the meaning of Article 4355 and be8rs the reSpo4sibilitg for incurring the 55 and bears the responsibility for incurring the expsnditur& oftkhhat deperhnent~

Sevsral opinions have previously been written by this department upon this subject. The first towhi'ch we refer wae rendered December 4, 1935 8t the request of the Qraeos River Conservation mad Reclamation District. It was there ruled that the Saud of Directors of said Distriot could not del- egate to its agent or a ocxmi+$ee authority to l pp-ove expenses incurred by the District so 8s to l uthorisc the Comptroller to issue a warrant. 1twa* pointed out in the opinion that the Board could delegate purely ministerial or exeautivs function8 but that specific authorieation or approval 04 the part of the Board ma8 required before the expenditures became a lawful charge against any appropriation of Stats funds.

04 March 24. 1936 this deprtmcnt advised the St8te Comptroller that a majority of the Board of Insuranoe Commissioners was required to 8pprove any and all expenditures pertaining to the various departments of insurance exoept against one particular fund. This fundw8s 8n exception because the statute provided that payment should be made "upon the aertifioate of the chtirman of the Board of Insumnce Commissioners."

An opinion was also rendered to the Comptroller of Public Accounts 04 April 1, 1937, concerning ths Texas Unemployment Compensation Commission. The Commission had by resolution attempted to delegate rather broad functions to the Assistant Sxeautivc Director to execute purchase orders, approm expendi- tures, etc. The opinion pointed out that some of the things attempted to be 'delegated wers ministerial and some required the exercise cd' discretion, end

ruled that the latter could not be delagated to the Assistant Sxsoutivc Direc- tor* but that the Cmmiasion was required to exeroire the necensrry discre- tion.

Hon. Lon Alsup, page 4 (O-5292)

In Opinion No. O-1126 we had befc~e us the question of *ether the Texas Stats Parks Foard might delegate to its oecretary the right to ap- prove claima against the Stat. appropriation for such board. The ruling was that such authority might not be delegated. An additional suggestion was made in the opinion that while the board might not delegate the authcr- ity to approve claims to a non-member of the board, it might delegate thie authority to some member of the board under rules and regulations to be promulgated by the board. Ia so far as said opinion expresses the oonolu- sion that the board may delegate itr discretionary authority to a member of the board, the sam8 is modified to conform to the views herein expressed, for, in our opinion, the principle of non-delegation of discretionary fun&ions is just as applicable to a member of a board or ootissicn as to a non-member. This authority is vested in t31e commission aa suoh and not in its members as individuals.

Eased upon the~fcregoing authorities, we conclude that the State Conrmission for the Blind is the head of a deputmantvested with discrati- onay authority by statute, that it may delegate purely ministerial act8 to be performed but may not delegate itr diaorationuy functions; and that the expenditure of moneys appropriated to it involves the sxeroise of disoretion or judgment.

Fpom your question, we understand that the Commission desire* to make a general authorization for exponditure8, and delegate to one or more of its individual members, or to its executive secretary, authority to approve all expend.&turea for payment without the neaersity of further (IC- tion by a majority of tha ConnnissionD In our opinion this cannot be done, and we therefore answer your question in the negative.

Yours very truly, ATTORliEYGENEFU,OFTEXAS By /a/ Cod1 C. Cammack Cecil C. Cammack Acsistmt CCCwslhnigw APPROTED Id&Y 26, 1943 APPHOVED Opinion Committee

/s/Gerald C, &UI ByBVfB

ATTORN'EYGEKERALOF TEXAS

Chairman