Dr. Ira E. Woods,              Opinion No. WW-400.
President, Texas State Board
  of Examiners in Optometry,   Re:   Authority of the Texas
307 Bolm Building,                   State Board of Examiners
Austin, Texas                        in Optometry to pay the
                                     salary of Executive
                                     Director of the Board in
                                     accordance with the reso-
                                     lution passed by the Board
Dear Dr. Woods:                      on January 28, 1958.
          You have requested an opinion of this office concern-
ing the authority of the Texas State Board of Examiners in
Optometry to pay the salary of an Executive Director of the
Board hired by resolution of the Board on January 28, 1958.
This resolution reads as follows:
              "Resolved, that in accordance with the
    provisions of Article 4556 of the Revised Civil
    Statutes of Texas, the board does hereby employ
    the services of Mr. Joe S. Moss of Houston, Texas,
    as a necessary assistant in carrying out the pro-
    visions of the Texas Optometry Act. It shall be
    the duty of Mr. Moss to assist the board, the
    members of the board, the Attorney General and
    the county and district attorneys of the State
    of Texas wherever necessary to carry out the
    provisions of the Optometry Act. Mr. Mess shall
    bear the title of Executive Director and shall
    receive for his services the sum of $500 per
    month, effective January 1, 1958. It is further
    provided that Mr. MOSS'S services and the Board's
    obligationto pay him therefor may be terminated
    at any time by the Board or by Mr. Moss."
          Article 4556 of Vernon's Annotated Texas Civil Stat-
utes, reads in part as follows:
              11. . . The Board shall have the power to
    make such rules and regulations not inconsistent
    with this law as may be necessary for the perform-
    ance of its duties, the regulation of the practice
    of optometry and the enforcement of this Act. 0 a s
Dr. Ira E. Woods, Page 2 (WW-400).


     The Board shall have the newer to emnlov the services
     of stenographers, inspectors, and other"necessary
     assistants in carrying out the provisions of this
     Act. . . ." (Emphasis ours)
          The problem resolves itself into a question of the
interpretation of the term "necessary assistants" as used in
Article 4556 and whether Mr. Moss falls within the term as
therein used.
          The rule making power of the Optometry Board as well
as the power to employ assistants is prefaced by the word
"necessary". This word does not have a fixed and definite
meaning but is~a word of flexibility, expressing degrees rela-
tive to the situation and context in which it is used. Scott v.
Walden, 140 Tex. 31, 165 S.W. 2d 449 (1942).
          In the case of Kee v. Baber, 303 S.W. 2d 376 (Tex.
Sup., 1957), the rule making power granted to the Optometry
Board by Article 4556 was before the court. It was there stated
at page 380 that the language which grants rule making authority
"lends support to a construction favoring a broad and liberal
delegation of authority".
          The most widelv accented definition of the word
"assistant" is stated to"be one who aids, helps, or assists.
Nail1 v. State, 59 Tex. Crim. 484, 485, 129 S.W. 630, 631 (1910).
In view of the fact that in Kee v. Baber, supra, the power
granted to the Optometry Board to make "necessary" rules and
Regulations is construed to be a broad power, it-is our opin-
ion that the power to hire "necessary assistants" is a broad
discretionary power to hire persons to aid, help, or assist the
Board in carrying out the purposes of the Optometry Act.
          The provisions of the Optometry Act provide for the
regulation of the practice of optometry by the Optometry Board.
In his capacity as Executive Director Mr. Moss performs the
following duties:
               "1. He assists the Attorney General
     and county and district attorneys of the State
     in the preparation, prosecution and trial of
     law suits involving violations of the Optometry
     Act.
                "2. At hearings before the board
     under Article 4563, Revised Civil Statutes of
     Texas, Mr. Moss presents evidence and assists
     the board in conducting the hearing.
Dr. Ira E. Woods, Page 3 (WW-400).


                “3 . He is in charge of investigations
      and the assembling of evidence in connection with
      violations of the Texas Optometry Act."
          It is, therefore, our opinion that the Texas State
Board of Examiners in Optometry was authorized to employ and
pay the salary of the Executive Director of the Board, as a
"necessary assistant", in accordance with the resolution
passed by the Board on January 28, 1958.
                          SUMMARY
                An Executive Director hired by resolution
                of the Texas State Board of Examiners in
                Optometry to assist the Board, Attorney
                General and county and district attorneys
                in carrying out the provisions of the
                Optometry Act is a "necessary assistant"
                within the meaning of Article 4556, and
               ::hissalary may be paid from the funds of
                the Board.
                                     Very truly yours,
                                     WILL WILSON
                                     Attorney General of Texas

                                     By f/J [::
                                          W. 0. Shultz
                                          Assistant
WOS:pf
APPROVED:
OPINION COMMITTEE

Geo. P. Blackburn, Chairman
Richard B. Stone
Morgan Nesbitt
Wallace Finfrock
REVIEWED FOR THE ATTORNEY GENERAL
By:   W. V. Geppert.
