                   TEIE     ATTOWNEY            GEXEIUI.
                                 OF    TESLAS
                                 ACSTIN ll.TExAS


Honorrble George ii. Sheppard
Comptroller of Oubllc Accountr
Aurtla,   Texar
Dear sir1                               O-3287
                                        Ret Concerning rtatue o? State Auditor’s
                                             Department, ..the Senate having refi.aeC
                                             oonfirmatlon of Tom C. King and the
                                             Governor thus far having nominated nc
i                                            other appointee.
                To your letter of .Narch 15, 191, you attach a claim of
Stovall-Richter   Printing  Company In the amount of’ 759 for atetlonery fur-
nished the State Auditor’s Department, bearing the elgnature of Fred R.
Donoho Flrat Assistant State Auditor, and the approval of the Board OP
Controi.    During the last year the Ctovernor appointed Mr. Tom C, King
State Auditor and submitted hla name to the State Senate at Its present
renmion for oonfln6atlon which wa6 refused.     In vlen of the fact thet
Hr. King’8 appointment wa6 rejected prior to the approval of the olalm,
you request our opinion a6 to whether you should issue a warrant ln
payment.
                You alro request our opinion a8 to whether the regular
employee8 of the Auditor’s Department, 6t tha time the Senate refused to
oonflrm Nr. Klnglr appointment, would be authorized to receive their ualarl
after the date OS ouch refusal,   they having continued the perf’ormance of
their respective   duties.  In the event of an afrlrmative anover to thl6
quertlon you request UB to advise who would be authorized to approve the
ulary clolm8.     Ye ~111 obrerve that 86 yet no 6uccellaor to Kc. King
has been appointed,
              Ye have written Opinion No. O-3343 expra6slng the view that
the Senate’8 rejection of Mr. King86 appointment leitthe office held by
him wholly vaoant.
                  Article   4413a-6, Vernon’s   Annotated Civil   Statutes,
reads1       .
                  ‘In the event said Auditor shall find It necessary
      to have aeslstance in the discharge of the dutlee herein
      imposed upon him, he may apply to the Qovernor for such
      assistance and the Governor Is hereby authorized, Ln his
      discretion,    to appoint such asei6tant or aealrtants,  in-
      cluding rtenographlc and clerical     aeslsta    as he may
      con8lder neCe66ary, In Order t0 accomplish‘$ he purposes
      oi thlr Act. ”
 sionorable George H. Sheppard,    ?sge 2                           3-3287


                   Ue UW advised by )Ir. Oonoho that it has long been the
 practice In the 8tate Auditor’s Deparlzaent r0r one 0r the aBBi$t~tB
 to be designated as llrst Asslstant.      The Qenersl Lk art6iental Approprl-
 atlon Bill (S.B. 427, p. 26, Vol.      2, Acts 46th Leg. P csrrles sn appm-
 prlatlon of ~~.OO       per year for the ‘First     Anslstant State Audltor,”
 Also oontalned ln S.B. 427 are Itemized approprlstions          for other assis-
 tants and employees.     There Is no statute defining the duties of the
 First   Asslstsnt,   as ls the aase in Base of the departments.        It Is
 noted that the ssslstants     In the Stat8 AudItor’s Department are appointed
 ghe      Qovernor. Furthermore he Is expressly given the power to remove
          Article 4413a-7, V.A.C.S.    Suoh esslstsnts,     including First
 Ass&ant      Donoho, as were lawfully 6ervlng In th8 State Auditor’s hpart-
 ment at the time of Hr. King’s rejection        vere not discharged lpao facto
 by such rtjectlolt.
                 Article 4355, Revised Civil Statutes, requires claims against
  the Stat8 to bear the !‘slgnature of the head of the department --
                                                                   or other
I person responsible for lncurr~    -the expenditure. ”
                Article   634, Revised Clvll   Statutes,   read68
                “!&heBoard of Control shall purchase all the
      supplies used by each D8pfirtmOnt of the State @over&
      m8nt, lnoludlng the State Prison Syste) snd each
      lle8mosynary lnstitutlon,  Normal school, Agricultural
      snd Ueohanlcal College, University of Texas, and each
      and all other State Schools or Departments of the
      State Govemrmentheretofore    or hereaf’ter created.
      Such suppllea to include z%?niture and flxture6,
      technical instruments and books, and all other things
      required by th8 different   depsrtm~nts or lnstltutlons,
      except strictly  perlahable goods.
               In the current Departmental Appropriation          Bill,   S.B. 427,
 at page 223, Special Laws, 46th Leg., it Is provided1
                 “All printing, and stationery    shall be pur-
       chased through the Bcord of Control and shall be
       confined to such articles    and qualities   a8 eelect-
       ed and contracted for by the Board, except certain
       printing provided by law to be done by several
       State agencies.    No part of the herein appropriatce
       amount6 shall be uwd for the purchase of embossed
       or engraved print13     and stationery   except for the
       Governor’s office,,’
                  SSnce the Baerd of Control, the purchasing agent of the
  State,  has approved this  claim in evidence of the Sect th8t the purchese
  1s ulthln Its contract,   and In vlew of the fact that Article 4355 doe6
  not necessarily   requlre that authentication be by the department head,
  it Is our opinion that ylr. Donoho’s signature on the claim eatlsfles   the
  6tatute and we answer your flr6t question in the affirmative.
                 In the Oeneral Departmental Appropriation        Bill,   S.B. 42’7,
Honorable Qeorge H. Sheppard,        Page 3                     O-3287


46th Leg.,   at page 229, Vol.    2, Acts 46th Lag., we fin& the tollowIng:
               “Xo salary for which an spproprl8tion  la made
     herein shall be paid to any perron unlesr such person
     actually dirchargee assigned duties.   Svery month the
     head of each department mhall ottaoh to the payroll
     for hir department an affidavit,  under oath, stating
     that the persona linted ln said payroll actually per-
     fomed the duffeer for which they were being paid.     The
     Comptroller shall not iaeue warrant8 for the payment
     of 6alarlea Mated on said payroll unless this affl-
     davit la f’iled with him.”
                Since the employees In the State Auditor’6 Department serve
under appointment by the Governor, thone who have not been discharged
by him and who have continued in the performance of their customary duties
since the rejection   of Ur. Klrg manifestly are entitled   to be paid for
their 8ervicea.    Suppose near the end of come month the head of euch a
department should die without having made the affidavit     covering the
service0 of the departmental em#oyecs for such month and the successor
could not make the affldavlt    due to lack of knowledge of the facts --
would such employees be deprived absolutely of theti pajr by the above
provision In the Departmental Approprlatlon T)lll?     We dc not thlnk 80.
It is our opinion that under such excegtlonal clrcuinstances as that and
the present the Comptroller may accept other proof.      In sny event he
should require the affidavit   of the First Asnl8tant,   and if satlsfled  618to
the correctnens of the affidavit   of BUC h Riret Assistant  he  may Issue
Balaay warrants to employees ln the State Auditor’s Department In accord-
ance theremlth.
                This opinion     ia confined   t3 the exact facts   presented   ln
your request.
                                          Pours very truly,
                                          ATl’ORXHY QENERAL
                                                          OF TEXAS
                                          By s/ Glenn R. Lewis
                                                QleM A. kJWiB
                                                  Asalstant



APPROVED APRIL 4,1941
 e/ Qerald C. Mann
 A’ITORXRY QHNRRAL
                 OF TEXAS
 Thle opfnllrn Considered and Approved In Limited Conference
