                                       The Attorney        General of Texas

   JIM MATTOX                                           April 25, 1984
   Attorney General



   Supreme Court Building
   P. 0. Box 12548
                                     Honorable Lloyd Criss                  Opinion No. JM-149
   Austin, TX. 78711- 2548           Chairman
   612/475-2501                      Committee on Labor and                 Re: Authority of the Adminis-
   Telex  910/874-1367                  Employment Relations                trator of the Texas Employment
   Telecopier   5121475.0266                                                Commission in regard to deeds,
                                     Texas House of Representatives
                                     P. 0. Box 2910                         contracts, expenditures, and
   714 Jackson, Suite 700            Austin, Texas   78769                  other functions
   Dallas, TX. 75202-4506
   2141742.8944                      Dear Representative Criss:

   4824 Alberta Ave., Suite 160
                                          In accordance with the Sunset Act, the Sixty-eighth Legislature
   El Paso, TX. 79905.2793           enacted legislation for the continuance of the Texas Employment
   915i533.3464                      Commission with modifications designed to improve the agency's
                                     operation. You have asked our opinion concerning the responsibilities
                                     of the members of the Texas Employment Commission and those of the
,-TX         Texas, Suite 700
       .louston, TX. 77002-3111
                                     agency administrator under the recently amended act. You also have
       713/223-5886
                                     asked three specific questions occasioned by changes in the act which
                                     relate to the organizational structure and administration of the
                                     agency. We believe the act as amended authorizes a person appointed
       606 Broadway, Suite 312       to the merit system position of agency administrator to perform the
       Lubbock, TX. 79401.3479
       6W747.5236
                                     routine, day-to-day administrative functions and authorizes the
                                     commission to administer the act and to take the action it deems
                                     necessary or suitable to that end. We believe the commission retains
       4303 N. Tenth, Suite B        the final responsibility for the administration of the Texas
       McAllen, TX. 78501-1695
                                     Unemployment Compensation Act.
       5121682.4547

                                          In the case of most state agencies,     the board or commission
       200 Ma,” Plaza. suite 400     appointed by the governor employs an administrator or director who, in
       San Antonio, TX. 78205-2797   turn, employs the personnel necessary for the operation of the agency.
       512/225-4191
                                     Prior to the Sixty-eighth Legislature, the administrative structure of
                                     the Texas Employment Commission differed from the usual structure.
       An Equal Opportunity/         The chairman of the Texas Employment Commission was statutorily
       Affirmative Action Em~love~   designated as executive director of the agency, but the commission,
                                     acting as a whole, was authorized to employ the persons it deemed
                                     necessary or suitable to administer the agency's duties. See V.T.C.S.
                                     art. 5221b-9; Attorney General Opinion H-979 (1977). How~r,     recent
                                     chairmen have not acted as administrator of the agency. Instead, the
                                     commission had chosen to employ an administrator who had no powers or
                                     duties designated by statute. The connnissionhad the authority to
                                     determine the administrative structure of the agency and continued to
                                     select and appoint persons to fill several top administrative




                                                                  p. 643
Honorable Lloyd Criss - Page 2 (JM-149)

                                                                         A


positions in the agency. See Texas Sunset Advisory Commission Final
Report on Business and Professional Agencies, Vol. 1 (1983).

     The Sixty-eighth Legislature amended articles 5221b-g(d) and
5221b-9, V.T.C.S., to delete the chairman's designation as executive
director and the commission's authority to employ the personnel
necessary to administer the agency. Article 5221b-9, as amended,
added a directive to the commission to appoint a" agency administrator
on the basis of merit to administer the day-to-day operations of the
Texas   Employment   Commissio",   including   the   appointment   and
determination of the duties of all persons necessary to perform the
commission's duties and the development of a system         of annual
performance evaluations on which all merit pay for the commission's
employees will be based.

    Article 5221b-9 provides, in pertinent part:

             (a) Duties and Powers of Commission: It shall
         be the duty of the Commission to administer this
         Act; and it shall have power and authority to
         adopt,    amend,  or   rescind   such  rules and
         regulations, to make such expenditures, require
         such reports, make such investigations, and take
                                                                         ?
         such other action as it deems necessary or
         suitable to that end. Such rules and regulations
         shall be effective upon publication in the manner,
         not inconsistent with the provisions of this Act,
         which    the CO~iSSiO"     shall prescribe.    The
         Commission shall determine its own organization
         and methods of procedure in accordance with the
         provisions of this Act. and shall have a" official
         seal which shall be judicially noticed.        The
         Commission shall appoint a" Agency Administra~
         on the basis of merit to administer the day-to-day
         operations of the Texas Employment Commission.
         The    commission may    prescribe any    specific
         qualifications for the position necessary to
         comply with federal law. The position of Agency
         Administrator is a merit system position.

             .   .   .   .

            (e) Personnel: The Agency Administrator is
         authorized to appoint and prescribe the duties and
         powers of all officers, accountants, attorneys,
         experts, and other persons as may be necessary in
         the performance of the Commission's duties. The
         Agency Administrator may delegate to any such
         person so appointed such power and authority as



                                p. 644
    Ronorable Lloyd Criss - Page 3 (JM-149)




             the Agency Administrator deems reasonable and
             proper for the effective administration of this
             Act, and may, at the Agency Administrator's
             discretion, bond any person handling moneys or
             signing checks hereunder. The Agency Adminis-
             trator or the Agency Administrator's designee
             shall develop a system    of annual performance
             evaluations based on measurable job tasks. All
             merit pay for Commission employees must be based
             on the system established under this subsection.
             (Emphasis added).

         However, section b(b) of House Bill        No.   2,   Sixty-eighth
    Legislature, 1st Called Session, provides:

                 (b) The person employed on the effective date
              of this Act as the agency administrator is
              entitled to continue to serve in that capacity at
              the pleasure of the commission.

    A person employed as agency administrator on September 1, 1983 may
    continue to serve at the pleasure of the commission without being
P   appointed under the merit system. In the future when the commission
    appoints a new administrator, that appointment shall be through the
    merit system, and such appointee shall be entitled to administer the
    "day-to-day operations" of the agency subject to the overall authority
    of the commission.

         Article 5221b-g(a), which      creates   the   Texas   Employment
    Commission, provides that "[tlhe Commission shall consist of three (3)
    members" with one representing labor, one representing employers, and
    one representing the public generally. (Emphasis added). Under the
    amended act, even as to future administrators, the commission retains
    the duty to administer the Texas Unemployment Compensation Act and the
    power to take the action it deems necessary or suitable for that
    purpose, including, among other things, the authority to adopt rules
    and regulations and to make expenditures, as well as the authority to
    determine its own organization and methods of procedure in accordance
    with the act.

         You specifically ask first whether the signature of the agency
    administrator is legally binding and acceptable on deeds and
    contracts. The disposition of state-owned land is a matter over which
    the legislature has exclusive control and the power of an agency of
    the state to sell and convey state property may be exercised only
    under the legislature's authorization. See Conley v. Daughters of the
    Republic, 156 S.W. 197, 200 (Tex. 1913);Lorino v. Crawford Packing
    co., 175 S.W.2d 410 (Tex. 1943); Attorney General Opinions MW-62
r   (1979); C-207 (1964); V-787 (1949); V-320 (1947). The terms of




                                       p.645
Honorable Lloyd Criss - Page 4   (JM-149)




legislative authorization for the sale of land must be strictly
complied with.   See State v. Easley, 404 S.W.2d 296 (Tex. 1966);
Wilson v. CountyofCalhoun,    489 S.W.2d 393 (Tex. Civ. App. - Corpus
Christ1 1972, writ ref'd n.r.e.); Attorney General Opinion MI+62
(1979). Material accompanying your opinion request indicates that YOU
are especially concerned about the authority to sell and convey
certain property in the city of Laredo.

     I" 1977, the legislature authorized the Texas Employment
Commission to sell and convey property in Laredo by the enactment of
chapter 526. Sixty-fifth Legislature, which reads, in pertinent part,
as follows:

             Sec. 2.  . . . The Texas Employment Commission
          shall have the right to reject any and all bids;
          otherwise the highest bid submitted shall be
          accepted.

             Sec. 3.   The three members of the Texas
          Employment Commission or a quorum thereof may
          execute and deliver a proper deed conveying the
          real property sold to the purchaser thereof, the
          form of such conveyance to be approved by the
          attorney general.

Chapter 526 expressly authorizes the commissio" to determine whether
to reject all bids and authorizes the three members of the commission
or a quorum of those members to execute a deed to convey the property.
Since the terms of legislative authority must be strictly complied
with, we conclude that only the members of the commission, or a quorum
of the members, may execute a contract or conveyance for the property
in Laredo and that the signature of the agency administrator on either
a contract or deed would not be legally binding.

     In order for the agency administrator's signature to be
sufficient on a contract of sale or conveyance for other property,
legislative authorization would be required for him, rather than the
commission, to dispose of the particular property.

     You also inquire whether the agency administrator may expend
money from the Unemployment Compensation Special Administration Fund.
Article 5221b-22a. V.T.C.S., which creates the fund, provides in
pertinent part that

          [tlhere is hereby established as a special fund,
          separate and apart from all public moneys or funds
          of this State, an Unemployment Compensation
          Special Administration Fund which may be used by
          the Commission for the purposes of paying costs of




                                  p. 646
Honorable Lloyd Criss - Page 5    (m-149)




          the administration of this Act . . . . The State
          Treasurer shall be the Treasurer and custodian of
          the fund.    He shall administer such fund in
          accordance with the directions of the Commission,
          and the Comptroller shall issue warrants upon it
          I"   accordance with    the directions of      the
          Comissio" . . . .     The   Commissio"   =Y.    by
          resolution duly entered in its Minutes, authorize
          to be charged against said moneys any expenditures
          which it deems proper in the interest of good
          administration of     this   Act,   provided   the
          Commission in such resolution finds that no other
          funds are available or can properly be used to
          finance such expenditures . . . .

     As we have stated, article 5221b-9 contains general provisions
prescribing the duties and powers of the commission. It states that
the commission has the duty to administer the Texas Unemployment
Compensation Act and the power and authority to make such expenditures
as it deems necessary or suitable for that purpose. Article 5221b-22a
is authority to the commission to use the specific fund in question
for the costs of the administration of the unemployment compensation
act. It provides that the commission, by resolution duly entered on
its minutes, authorizes the use of money in the fund for expenditures
which it deems proper in the interest of the good administration of
the act.    The state treasurer and comptroller are directed to
administer the fund and issue warrants in accordance with the
directions of the commission. Chapter 1095 of the Sixty-eighth
Legislature, the General Appropriations Act, appropriates to the Texas
Employment Commission in item 5 a maximum amount that may be expended
for the administration of the Texas Employment Commission. See Art.
I-69 at 5804 of the Session Laws. We are not aware of any statutes
which also authorize the agency administrator to expend money from the
Unemployment Compensation Special Administration Fund.

     Finally you ask whether the agency administrator is permitted to
submit Attorney General Opinion requests. Article 4399, V.T.C.S.,
provides in pertinent part that

          (b) Persons who     may    request written    opinions
          include:

          (1) the Governor;

          (2) the head   of   any department of        the   State
          government;

          (3) the heads and boards of penal institutions;




                                 p. 647
Honorable Lloyd Criss - Page 6 (m-149)




          (4) the heads              and   boards    of   eleemosynary
          i"stitutio"s;

          (5) the         heads of all other State boards;

          (6) regents and           trustees of     State educational
          institutions;

          (7)   committees           of    either   branch   of   the
          Legislature;

          (8) county auditors authorized by law; and

          (9) the chairman of the governing board of any
          river authority.

          .   .   .   .

          (d) The Attorney General is hereby prohibited from
          giving legal advice or written opinions to any
          other than the officers or persons named herein.

     It has long been the policy of the attorney general's office to
accept requests submitted by the secretary, the executive director, or
the executive secretary of a board on behalf of the particular board,
but the request should reflect that the board desires the opinion;
See Opinion Request Procedures published in the Digest of Opinions of
the Attorney General of Texas (1970-1981).

                                     SUMMARY

             A person appointed to the merit system position
          of agency administrator of the Texas Employment
          Commission is authorized to perform the day-to-day
          administrative functions of the agency, while the
          members of the Texas Employment Commission retain
          final responsibility for the administration of the
          Texas Unemployment Compensation Act and may take
          the action necessary or suitable for that
          function. In order for the agency administrator's
          signature to be sufficient on a contract of sale
          or   a   conveyance   of   property,   legislative
          authorization would be required for him, rather
          than the commission, to dispose of the particular
          property. The Texas Employment Commission is the
          entity with authority to expend money from the
          Unemployment Compensation Special Administration
          Fund.   The agency administrator may request
          written Attorney General Opinions on behalf of the




                                       p. 648
.   1




        Honorable Lloyd Criss - Page 7     (JM-149)




                  Texas Employment Commissio" if the request
                  reflects the desire of the commission for such an
                  opi"io".
                                              \




                                                  Attorney General of Tends

        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Nancy Sutton
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Rick Gilpin, Chairman
        David Brooks
        Colin Carl
        Susan Garrison
        Jim Moellinger
        Nancy Sutton




                                         p. 649
