                                                   This opinionmodifies
                                                   OpinionNo. O-1126




HonorableLen Alrup
ExeoutiveSecretary-Director
State Comirrion for the Blind
Land Office
Austin, Texas

Dear Mr. Alsupt                   OpinionNo. O-5292
                                  Re: Approvalof claims for pay7
                                  ment by State Comvlosio4for the
                                  mind.

      Ue are in receipt'ofyour letter of "cy 6, 1943, inwhioh you sub.
nit,the followingquestionfor our opinion:

sPleassadvise the State Commissionfor the Blindwhether the Board of
the State Conmissionfor the Hlindmey delegateto any of its members
or to its executivesecretarythe authorityto approvefor paymentall
expenditureswhich may have been authorizedby the State Comnissionfor
the Blind."

       The State Commissionfor the Blind is providedfor in Article320%
Vernon’sTexas Civil Statutes(Aots 1931, 42nd Lag. p. 122, oh. 80, as
amendedActs 1939, 46th Leg. S.B. So. 462). In Section1, a three member
board was originallyprovidedfor but by 1:.B. 362, Reg. Seer. 48th Leg.,
the membershipof %~e Boardwas increasedto six. A aarefulexamination
of the acts relatingto this oomsissionshcwsthat the full responsibility
for performingthe dutiesthereinprovidedis vested in the ConmIssionas
such.
       Section1 8s emendedprovidesthat four members shall oo4stitute8
quorum for the transactionof businsss,end that the Comnirsionmay annu-
ally elect a Sectetaryand such other employeesas may bs authoriaedby
the generalor specialappropriationfor raid Conmission.

       By Section (a) it is probidedthat: "The State Conmissionfor the
Blind shallmaintaina Bureau of Infornvtion. . . The Comnir~i~n   shall
in its discretionfurnishmaterials,tools and books for the use as a
mesn~ in rehibilitating such personsand it my establishworkshopsand
salesrooms,and shall have authorityto use any ~receiptsor earningrthat
aooruefrom the operationof industrialsohools,ralssrooms,or workshops
as providedin thir  Chapter. . . The Conmissionmay receivegifts,
bequests,or devisesfrom individuals,  associationaor corporations, and
mry expendthem-in aooordenoewith the provisionsof this Ad.”    We have
    Hon. Lon Alsup, p.ge 2 (O-5292)



    not attemptedto set out all the authorisation of the,Ctirrion, but
    quote the foregoingto demonstratethat the responsibility is vested
    directlyin the C1nmuissio4as such and that discretionaryfunctionsare
    committedto the Commission.

          Section3 providesthat:

    "The State Conmdsrio4for the Blind may appointand fix the compensation
    of an executivesecretaryand such otherworkers as may be necessspyto
    make effectivethe purposesof this bet within the rppropriationsprovided.,"

           Ws do not think that this sectionmay be construedas vesting in the
    executivesecretrryany discretionaryauthoritywhichwould be normallyvest-
    ed in the Commissionas the he&d of the dep+rtmentor divisionof State gov-
    ernment. The exeoutivesecretaryis an employeeof the Cdrsion wrkiag
    under the directionof the Commissionin oarryingout its directions,and
    he is given no authorityby the statuteindependentof the Conmission. I4
    other words, in matters involvingthe exeroiseof discretion,he may act 8s
    an exeoutiw officerto oarry out and performonly thosethings whereinthe
    Cornmissionhas exeroisedthe discretion.

           In Horne ZoologicalArena Compenyva. City of Dallas,45 S.pi.(2d) 714,
    the court had the followingto say with referenceto the delegationof suth-
    oritya

    "The generalrule is that,where the law createsa board to have oharge of
    the affairsof 8 municipalityor a particularpart thereof,such board may
    appoint egentsto dhsohargeministerialdutiesnotcellingfor the exeroise
    of reason or discretion,but it cannot go beyondthis and delegateto
    othersthe disohargeof dutieswhioh or11 for reason or discretion,end
    which are regardedas part of the publictrust assumedby the board. The
    power to exercisediscretionin matters entrustedto such boards cannotbs
    delegated,surrendered,or barteredaway.
    w    . The psrk board was chargedwith the trust of spendingthe money set
/   rbiie for the maintenanceof parka, and it couldnot *void its responsibil-
    ity by delegatingto other8the authorityto act for it in the purobaseof
    such animalstithoutlimit 8sto the kind of snim8lsto be pxobased or the
    prioe tobe paid therefor. The trial court correctlyheld thst Jacoby
    merely by virtue of his authorityas directorof parek did not hsve author-
    ity to m&e the contractin question."

          m   duo 00.11attenth to the following*tatutes.~
                                                      '3
                                                       ,,
          &ticle 4344, R.C. S. 1926, Subdivision4, providesthat the Comp-
    trollershalls

    "Requireall aooountspresentedto him for settlementnot otherwiseprovid-,
    ed for by law to be made on forms prescribedby him, all suoh accountsto
    be verifiedby affidrvit~ as to their correctness,mnd he may &n.i4ister  ~
Hon0 Len. Aloup - page 3 (O-5292)



the oath himselfin any c8se in which he my deem it          neaessmy,”

      &+icle 4355 R.C. S. 1925, as' amended,Acts 1931, 42nd Leg., p. 400,
oh. 243, providssamong other things:

"All claims and account8againstthe State shall be suhnittedon forms pre-
scribedby the Comptrollerand in duplicate,when requiredby him except
018imsfor pensions,and shallbe so preparedas to providefor the entering
thereon,for the us0 of the Comptroller's
                                       Deparkmnt, as wellas other appro-
priatematters,the following:

"1. Signatureof the herd of the departmentor other psrson responsible
for incurringthe expanditurc.c

       Wc think it clear from the provisionsof Article 32078
                                                        ---.-     that
                                                                  “--    the
                                                                          -”    State
                                                                                “.,S””
Commissionfor the Blind is the head of the Separtment,,V.
                                                      or Alrini
                                                              divisionnn of the
                                                                         -4  the
State govermnent(StateBoard of Registrationfor Rrof ss
Hatter,139 S.W. (2d) 169; Rainayv . ~a104e,141 S.11,?2dj%&%%;:pg
                                                    (2d]       713) w%hf:r* V*       T-*
the meaning of Article 4355
                         55 and be8rs
                                bears the reSpo4sibilitg
                                          responsibility  for incurringthe
expsnditur& oftkhhat deperhnent~

       Sevsralopinionshave previouslybeen written by this department
upon this subject. The first towhi'chwe referwae renderedDecember4,
1935 8t the requestof the QraeosRiver Conservationmad ReclamationDistrict.
It was there ruled that the Saud of Directorsof said Distriotcouldnot del-
egate to its agent or a ocxmi+$eeauthorityto lpp-ove expensesincurredby
the Districtso 8s to luthoriscthe Comptrollerto issue a warrant. 1twa*
pointedout in the opinionthat the Board could delegatepurelyministerial
or exeautivsfunction8but that specificauthorieationor approval04 the part
of the Boardma8 requiredbefore the expendituresbecame a lawful charge
againstany appropriation  of Stats funds.

       04 March 24. 1936 this deprtmcnt advisedthe St8te Comptrollerthat
a majorityof the Board of InsuranoeCommissioners was requiredto 8pprove
any and all expenditurespertainingto the various departmentsof insurance
exoeptagainstone particularfund. This fundw8s 8n exceptionbecausethe
statuteprovidedthat paymentshouldbe made "upon the aertifioateof the
chtirmanof the Board of Insumnce Commissioners."

        An opinionwas also renderedto the Comptrollerof PublicAccounts04
April 1, 1937, concerningths Texas UnemploymentCompensationCommission. The
 Commissionhad by resolutionattemptedto delegateratherbroad functionsto
 the AssistantSxeautivcDirectorto executepurchaseorders,approm expendi-
 tures, etc. The opinionpointedout that some of the things attemptedto be
'delegatedwers ministerialand some requiredthe exercisecd'discretion,end
 ruled that the lattercould not be delagatedto the AssistantSxsoutivcDirec-
 tor* but that the Cmmiasion was requiredto exeroirethe necensrrydiscre-
 tion.
Hon. Lon Alsup, page 4 (O-5292)



       In OpinionNo. O-1126we had befc~eus the questionof *ether the
Texas Stats Parks Foardmight delegateto its oecretarythe right to ap-
prove claimaagainst the Stat. appropriation for such board. The ruling
was that such authoritymight not be delegated. An additionalsuggestion
was made in the opinionthat while the board might not delegatethe authcr-
ity to approveclaims to a non-memberof the board, it might delegatethie
authorityto some member of the board under rules and regulationsto be
promulgatedby the board. Ia so far as said opinionexpressesthe oonolu-
sion that the board may delegateitr discretionaryauthorityto a member of
the board,the sam8 is modifiedto conformto the views herein expressed,
for, in our opinion,the principleof non-delegation  of discretionary
fun&ions is just as applicableto a member of a board or ootissicn as to
a non-member. This authorityis vested in t31ecommissionaa suoh and not
in its members as individuals.

       Easedupon the~fcregoing authorities,we concludethat the State
Conrmission
          for the Blind is the head of a deputmantvested with discrati-
onay authorityby statute,that it may delegatepurelyministerialact8
to be performedbut may not delegateitr diaorationuy functions;and that
the expenditureof moneys appropriatedto it involvesthe sxeroiseof
disoretionor judgment.

       Fpom your question,we understandthat the Commissiondesire*to
make a generalauthorization for exponditure8,and delegate to one or more
of its individualmembers,or to its executivesecretary,authorityto
approveall expend.&tureafor paymentwithout the neaersityof further(IC-
tion by a majorityof tha ConnnissionDIn our opinionthis cannotbe done,
and we thereforeansweryour questionin the negative.

                                         Yours very truly,

                                  ATTORliEYGENEFU,OFTEXAS

                                  By /a/ Cod1 C. Cammack

                                         Cecil C. Cammack
                                                Acsistmt

CCCwslhnigw

APPROTEDId&Y26, 1943                         APPHOVED
/s/Gerald C, &UI                         OpinionCommittee
ATTORN'EYGEKERALOFTEXAS                      ByBVfB
                                            Chairman
