                                                                              R-581

-,
                                             OFFICE           OF

                            THEATTORNEY GENERAL
                                           AUS~N~       TEXAS

     PRICE  DANIEL
     ATTORNEYGENERAL                        June 30, 1947

             Hop. John A. Hulen, Chairman,.
             Texas National Guard Armory Board,
             Second National,Bank Building,
             Houston 2, Texas ',             Opinion ETo. V-286
                                                        Re:     Authority~o?~ Chair-
                                                                man of the Texas
                                                                National Guard Ar-
                                                                mory Board to ap-
                                                                prove for payment
                                                                all obligations  0r
                                                                the Board.
             Dear General Hulen:
 -
                              Your.,request-for    an opinion      of this   department
             is       substantially    as follows:
                        "The Texas National Guard is in the process
                        of reorganization.    This reorganization     has
                        caused the'Tex%s National.Guard Armory Board
                        to broaden it&field    o? operations.     As you
                        know it is the duty of the Armory Board to
                        provide armories and other fdailities      for ~the
                        units o? .the National Guard.
                  4
                       "A ntiber of armories have been rented and
                       are scattered   over the State; others, will be
                       rented or construoted.     The rental and other
                       charges must be paid by the Armory Board out
                       of appropriations   made available   for this pur-
                       pose by the Legislature.     The number of doou-
                       ments and vouchers submitted to the Comptrol-
                       ler are numerous.    The Comptroller requires
                       the approval of at least three members of the
                       Armory Board on each of the documents submit-
                       tea for payment.    Due to the faot that the
                       Board Members reside at different     places in
                       the State, this requirement causes consider-
                       able delay in the payment of accounts.       The
                       Comptroller,   when requested to pass these
                       aoouments With the approval only of the Chair-
                       man of the Board, suggested that he would be
Hon. John A. Hulen, - Page 2               Opinion    NO.   V-286


        dlaa to do     so if such uro~oe;~lreceived   the
        approval of     the Attornep          . Such pro-
        cedure, 0r     course, would be based on a proper
        resolution     of the Armory Board.
        “In view of this request of the Comptroller,
        we enclose herewith copy or a resolution     or
        the Armory Board authorizing   the Chairman or
        the Board to approve for payment all obliga-
        tions of the Armory Board incurred against
        the monies appropriated   by the Legislature    to
        the different accounts of the Board.
        “Will you, therefore,   please advise whether,
        in view of, the rovisions    of the Armory Board
        Act (Art. 5890b 7 the Board may authorize the
        Chairman to approve for payment on behalf o?
        the Board the documents and oharges against
        the funds appropriated   by the Legislature  to
        the different  aocounts of the Armory Board.”
           The resolution  adopted by the Board purport-
ing to authorize t,he Chairman of the Board to approve
for payment on behalf of the Board various documents
and oharges is as follows:
        “Resolution  adopted by-the Texas National
        Guard ~Armory Board at a regular meeting hela
        June 6, 1947, in the city of Austin, Texas:
          Y3.ESOLVED,that the Chairman of the Board
          of the Texas National Guard Armory ,Boara
          be, and he is hereby, authorized to ap-                     .
          prove for payment on behalf of the Ar-
          mory Boar& all vouchers,     expense acoounts,
          payrolls,  rentals,   and. other aoquments
          which have heretofore    been approved by
          the several members of the Board before
          submission to the Comptroller o? the
          State of Texas for payment; that such ap-
          proval by the Chairman shall constitute
          the approval of the Board.”
             Article     5890b, Vernonts   Civil     Statutes,      pro-
vides    in part as    roihis:

             “Section 1.  There is hereby createa the
        Texas National Guard Armory Board to be com-
        posed of rive (5) members who shall serve with-
     Hon. John A. Hulen,    - Page 3       Cpinion No. V-286
_-



          out compensation other than their actual, ne- :
          cessarg expenses while traveling  on the busi-
          ness of the Board. . .
               n. . .

                "The Board shall aot by resolution   at a
          meeting thereof called, and held in accordance
          with its by-laws or rules.and regulations.
          Three (3) members of the Board shall con&i-
          t,ute a quorum for the transaction  of business
          at all meetings and any ao.tion taken by the
          majority of the members of the Board present
          at any meeting thereof shall be deemed to be
          the action of the Board for all purposes; but
          if four (4) members are present ana voting,
          an equal vote in both affirmative   and negative
          shall, defeat the proposition.
               ri. . .

                 "Sec. 2. .The Board hereby created shell
          be am3 it is hereby constituted        a body politio
           and corporate.     IX shall suoceed to the owner-
           ship of all property of, and all lease and
           rental contrasts    entered into by, the Texas',
          National Guard Amory Board'that'was          hreated
           by prior statutes ana all of the obligations,
           aontraatea or assumed by the last mentioned
           Board with respect to any,such property and
           contract~s shall be the obligations       of the
           Boaia oreated by this Act.        With this escep-
           Mod, no obligation      of said former Board shall
           be binding upon the Board hereby created.          It
          ,shall be 'the duty of said Boara to have charge
           of the acquisition,     constru+.on,    rental,   con-
           trol, maintenance and dperation of all Texas
           National Guard Armorie$I, including stables,
                      rifle ranges, hangers and all other
           ~~~$Z~     and equipment necessary or useful in
           connection therewith,     and said Board shall
           possess all powers necessary and convenient
         .?or the aocomplishment of such duty, . . ."
               In the case of Webster, et al, vs. Texas and
     Paoiric Motor Company, et a$, 166 9. w. (2a) 75, Chief
     Justice Alexander, speaking for the Supreme Court,
     stated as r0li0ws:
Hon. John A. Hulen,    - Page 4       Opinion No, V-286


            YIt is a well established   rule in this
     State, as well as in other States, that~ where
     the Legislature     has committed a matter to a
     board, bureau, or commission; or other admin-
     istrative    agenoy, suoh board, bureau, or oom-
     mission must act thereon as a body at a etat-
     ea meeting, or one properly called,      and o?
     which all the members of suoh board have no-
     tice,    or of which they are given an opportun-
     ity to attend,      Consent or acquieaoeuce or,
     or agreement by the individual     members Mting
     separately,    end not as a body, or by a number
     of the members less than the whole aoting
     collectively    at an unscheduled meeting with-
     out notiae or opportunity     of the other mem-
     bers to attend, is not sufficient.      . .”
          In an Opinion numbered O-5667, dated November
26, 1943, this Department stated as follows:
          “In the ease of a Board the statutory
     power or authority  is to be exeoutea by the
     Board as a body, That is to say, at a meet-
     ing of the Boera duly assembled, end not by
     the individual  and separate action of the
     members otherwise than as a boay . . .
     “mere,   however, the Board has duly aotea as
     a boo,   it may, by appropriate   resolution,
     authorize the President,    or any other officer
     of the college,   to execute the instrument in
     the name, for and on behalf of the Board.”
             It will be seen from the foregoing      that the
Board must act as a body, and consent or acquiesence           by
the indivudual members acting separately         is not su??i-
cient.     However, if the Board has acted as a body in
authorizing      the payment of expense acoounts, payrolls,
rentals,    etc.,   then it may, by resolution,    aeSign@te
the Chairman to exeoute the same on behalf of the Board.
The construction      placed upon the resolution    under con-
sideration     by this department is that the Board does
not contemplate approval as a body, but severally;
therefore,     such resolution   would not be in ooniormity
with the established       rule regulating  the affairs   of a
Board, and your question must therefore         be answered in
the negative.
                                 .
Hon. John A. Hulen, - Page 5      Opinion No. V-286




          A matter t?omdtted to a State Board UW3t
    be acted upon as a body at a stated meeting,
    and the resolution    of the National Guard Ar-
    mory Board delegating    authority to the Chair-
    man or its Board to approve accounts,      etc.,
    by said Board would not be sufficient,        If
    the State Board has duly acted as a body, it
    may, by appropriate    resolution,  authorize eny
    or its officers    to act for and on its behalf
    as to specific   items covered by such resolu-
    tion.
                               Very truly   yours,
                         ATTORNEY
                                GEIIT4TERAL
                                        OF TEXAS



                               Burned.1 Waldrep
     SW:wb:sh                  Assistant
