                                     August4, 1965
A-bHxiY\-     ,ia.;5r.lb.I.




            Honorable Robert S. Cslvert              Opinion Ro. C-4yir
            Comptrollerof Public Accounts
            Aushn, Texas                             Re: Whether the First
                                                         Assistants and Chief
                                                         Deputies In the various
                                                         State offices end
                                                         departmentsare entltled
                                                         to reimbursementfor
                                                         their actual meals,
                                                         lodging and incidental
                                                         expenses while travel-
                                                         lng on official business
                                                         either ln or out of the
            Dear Mr. Calvert:                            State of Texas.
                      You have requested a~ opinion from this department
            on the question as hereinafter stated:
                             Whether the First Assistants and Chief Deputies
                        In the various State offices and departments'are.
                        entitled to reimbursementfor their actual meals,
                        lodglng and Incidental expenses while traveling
                        on official business either in or out of the
                        State of Texas.
                      In connection with this request, I quote from your
            letter the following:                                 i
                             "In this connection I invite your attention
                        to subsection (a) of Section 17, Article V of
                        House Bill 86, Acts 56th Legislature,Biennial
                        AppropriationBill from September 1, 1963 to
                        August 31, 1965, both dates inclusive,which
                        reads as follows:
                             'Executiveheads of State agencies,
                        Including the Executive Director of the
                        Legislative Council, shall be reimbursed for
                        their actual meals,,lodging and incidental
                        expenses when traveling on official business
                        either in or loutof the State.'


                                            -2259-
Hon. Robert S. Calvert',
                       page 2 (C-477)


         "Also I want to call your attention to
    subsection (a) of Section 17, Article V of
    Rouse Bill 12, Acts 59th Legislature,Biennial
    AppropriationBill from September 1, 1965 to
    August 31,'1967,which reads as follows:
          'Executiveheads of State agencies,~
     including~theExecutive Director of the
     LegislativeCouncil, shall be reimbursed for
   , their actual meals, lodging and incidental
     expenses when traveling on official business          ; :
     either in or out of the State.'
         "Further,I Invite your attention to Section
    2 of &he Travel RegulationsAct of 1959, Codified
    as Article 6823a of Vernon's Civil Statutes,,which
    provides:
         ll%e provl&ons of this Act shall apply to
    all officers, heads of state agencies, and
    state employees. The provisions of this Act
    shall not apply to judges and other judicial
    employees~paldby the state, counties or other,
    political subdivielonspursuant to law. Heads
    of state agencies shall mean elected state
    officials, excludingmembers of the Legislature
    who shall receive travel reimbursement as pro-
    vlded by the Constitution,appointed state
    officials>appointed state officials whose. ..'
    appointment Is subject to Senate confirmation,
    directors of ltiglslal$veinterim committeesor
    boards, heads of state hospitals and special
    schools, and heads of state lnstltutlonsof.
    higher education.' (Bmphaslsadded)
          "I have no difficulty In determiningthat
    elected State officials and appointed State
    officials who are confirmedby the Senate are
    entitled to reimbursementfor their actual meals,
    lodging and~incidentalexpenses;   however, i.n view
    of the fact that the Travel RegulationsAct of 1959,
    as amended, also defines heads of State agencies
    to include 'appointedState officials,'I am desirous
    of securing  your opinion as above stated on whether
    thls terminologyshould be construcd'asincluding
    the First Assistants and Chief Deputies in the
    various State Offices, Departmentsand Agencies.
    It is my understandingthat these officials take
    the official oath of office, and ln most.cases,

                         -2260-
Ron. Robert S. Calvert,   page   3 (C-477)


     they have complete authority to function in the
     absence.or inability of the particular office
     holder."
          Article 4340, Revised Civil Statutes of Texas,.
provides in part as follows:
             "The office of Chief Clerk to the Secretary
     of State Is hereby abolished, and the office of
     Assistant Secretary of State Is hereby created.
     The Assistant Secretary of State shall be an
     attorne    -at-law, and he shall have had at least
     five (5 7 years actual practice in this State
     prior to his appointmentand shall perform all
     the duties required by law to be performed
     by the Secretary of State ‘whenthe said Secretary
     of State Is absent or unable to act for any reason.
     . . . The said Assistant Secretary of State shall
     serve as such so long as the Secretary of State
     appointing Na is In office."
             Artlcle,u12, Revised Civil Statutes, of Texas, pro-
vides:
          "In case of the absence or Inability of the
     Attorney General to act, the first office assistant
     of the Attorney General shall discharge the duties
     which devolve by law upon the Attorney General.”
             Article 4352, Revised Civil Statutes of Texas,
provide8 :
          "The Comptroller shall appoint a chief clerk,
     who shall take the official oath aad give bond in
     the sum of ten thoueand dollars payable in like
     nmnner as the bond of the Comptroller,conditioned
     for the faithful performance of his duties. ‘Said
     clerk shall perform the duties of the Comptroller
     when the Comptrollermay be unavoidably absent
     or incapable, from sickness or other cause, to
     discharge said duties, : . .v
          The above Statutes are set out to point out a few .
o,ieFs Statute8 creating the offices of Assistants and Chief
      .
         In the case of Pfeffer v. Whnke, 260 S.W. 1031
(Tex.Com.App.1924), In discu8sing Articles 4318 and 4319,

                             -2261-
                                                                   i ...
                                                       ;
Hon. Robert S. Calvert,   page 4 (C-477)


Revised Civil Statutes of Texas, which Is now Article 4340,
and Article 4343, which is now Article 4352 of the Revised
Civil Statutes of Texas, the Court said:


           "It is observed that articles 4318 and
     4343, respectively,require that the secretary
     of state and the comptrollershall each ap-
     point a chief clerk. It Is not optional with
     either to appoint or not appoint such chief
     clerk. The statute Is mandatory In providing
     for a chief clerk for each. The offices of
     chief clerk of each Is thus created by statute.
     It is likewise observed that the statutes
     provide that, ln the absence of the secretary
     of state,  or his inability to act from any
     cause, the chief clerk may perform all the
     duties required by law of that officer, and
     that It shall be the duty of the chief clerk
     of the comptrollerto discharge the duties
     of the comptrollerwhen he may be unavoidably
     absent or Incapable from sickness, or other
     causes, to discharge said duties.
          "The service of the secretaryof state
     and the comptrolleron the board of educa-
     tion 1s the performanceby each of a duty.
     attached by the statute    to the office held
     by each. The duties are not personal. They        f
     are duties attached to the offices. Any hold-
     er of the office of secretaryof state or comp-
     troller must serve as a member of the board of
     education as a part of the duties of those
     offices respectively. Since the statutes pro-~
     vlde that the chief clerks pyryrespectively
     perform the duties attaching to those offices,
     the chief clerks..may,   ln the contingencies
     mentioned In the statutes,perform the par-
     ticular duties attaching to the offices of
     secretary of state and comptrollerby virtue
     of the statutes making them members of the
     board of education. In such cases the chief
     clerks do not perform those duties by delega-
     tion of authority from their chiefs. They         ,
     perform them by virtue of authority of the
     Legislature In the same way that their chiefs
     are authorized to perform them. The Iegls-
     lature could have provided that, In the
     absence, etc., of the secretary of state and
                            -2262-
.   .   *                                                                  -



            Hon. Robert S. Calvert, page 5 (C&7)


                'comptroller,the chief clerks of either or
                 each should be members of the board of cd-'
                 ucatlon. The Ieglelaturehas-+one the same
                 thing ln a differentway by prescribing that
                 the chief clerks provided by statute shall
                 and may, in the absence of the secretary 00
                 state and the comptroller,perform the duties
                 of those officers, among which are duties
                 arising from their membership on the state
                board of education. Thus the chief clerk8
                are officers provided by statute, and
                authorized by statute, to perform the duties
                attaching to the officers of secretary of state
                 and comptroller,making those officers members
                of the board of education. The ruii authority
                of the chief clerks thun to .act arises from
                 the acts of the Leglslature~lnvestlngthem
                with such authority *hen the contlngencles
                mentioned ln the statutes arise. There IS
                no delegation or authority to the~chlef
                clerks by the secretaryof state and the
                comptroller. In truth and ln fact, the
                 secretaryof state and the comptrollerare
                 lmpotent to prevent the chief clerks from
                 thus performlng the dutler o? those offices
                ln the contlngenclesof the statutes author-    '
                 lzing them to act. ~!Phechief clerks have the
                 sazszauthority to perform the duties of those
                offAces in those contingenciesthat the
                 secretary of state and.coolptroller.haveto
                perform them at all otherstimes--theauthority
                of the Legislature. The chler clerks are



                      ,I
                           .   .   .   '   (Emphasisadded)
                      The foregoing case authorSty makes It clear that
            where a statute authorizes the designationof someone to
            exercise the powers and carry out the functions of a stats
            office ln the absence or inability to perform of the person
            holding such office, the person so designated to act derives
            hls authority, not by delegation from the officer he holds
            under, but, directly from the Legislature,and la, therefore,
            a public officer of this State.



                                                 -2263-
                       page 6 (C-477)
Hon. Robert S. Calvert,,



          It therefore follows that when an Individual Is
designatedas first assistant, chief deputy, or by whatever
title, to 'a State office, pursuant to a statute whereby
such person has the atatutoiy authority to act for such
office, he Is an "appointedstate official" as that term
Is used ln the definitionof "heads of state agencies" set
forth ln Section 2 of Article 6823a of.Vernon'sCivil
Statutes.
          It Is therefore the opinion of this office that
any first assistant, chief deputy, or by whatever title
known, of the various State offices, departmentsand agencies,
who are authorized by statute to act for such office, depart-
ment or agency ln the absence of, illness or inability to
act of,the head of 8UCh office, departmentor agency, is an
appointed State official, and such appointed State official
would-be entitled to reimbursementfor their actual meals,
lodging and incidentalexpenses while traveling on official
business either ln or out of the State of Texas.

                                                             .,:
                                                              :.
                                                             :_;
                                                               !':-
         First Assistants and Chief Deputles"lnthe
    various State offices and departments,who are
    authorizedby statute to act for such office or
    department ln the absence of, Illness or inability
    to act of the'head of such office or department;
    is an appointed State official, and would be entitled
    to reimbursementfor his actual meals, lodging and
    incidentalexpenses while travelingon official
    business, either in or out of the State of,Texas,
                               Yours very truly,
                               WAOCORRR
                                      CARR
                               Attorney General

                               BY


J?lB:sj




                        .‘.,-2264-
Ron. Robert S. ~Calvert,page 7 (Can)


APFROVED:
OPIRIOR COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Philllp,,Crawford
Arthur Sandlin
Roy B. Johnson
APPROVRDFOR!lXRA!ITORRRYGRRRRAL
BY: T. B. Wright




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