                   E                       EY         GENERAL




                                February        16,   1962


Honorable    William A. Harrison             Opinion No.       WW-1262
Commissioner       of Insurance
International   Life Building                Re:      Whether the Liquidation Division
Austin,   Texas                                       of the State Board of Insurance is
                                                      subject to the Position Classifica-
                                                      tion’ Act of 1961, and related ques-
Dear   Commissioner       Harrison:                   tion.

        Your   letter    requests     the opinion     of this office   on the following
questions:

                “1.  Is the Liquidation Division of the State Board
        of Insurance subject to the Position Classification  Act of
        1961?

                   “2.If your answer to Question No. 1 is in the nega-
        tive, I request your further opinion as to whether or not the
        Commissioner      of Insurance is authorized under Article  21. 28,
        Section 12, Texas Insurance Code, to enter an order placing
        the Liquidation Division of the State Board of Insurance under
        the Position Classification    Act of 1961, and whether or not the
        issuance   of such order would subject the permanent employees
        of the Liquidation Division to the Position Classification   Plan
        as set out in the Position Classification   Act of 1961. ”

         Section   2 of the Position      Classification      Act of 1961 reads,     in part,
as follows:

                 “Sec.    2. All regular,   full-time    salaried employments
        within the departments      and agencies of the State specified in
        Article   III, . . . of the bienniel Appropriations      Act, shall con-
        form with the Position Classification         Plan hereinafter    described
        and with the salary rates and provisions          of the applicable Appro-
        priations Act commencing        with the effective date of this Act, .-with
        the exceptions     and deferments    hereafter provided in this Section.

                “Effective      January 1, 1962, alI regular,    full-time           sala-
         ried employments       in executive or administrative’agencies              of
Hon.   William   A.    Harrison,   page 2      (WW-1262)




        the State, regardless   of whether their funds are kept inside
        or outside the State Treasury,    shall also conform with the
        Position Classification   Plan hereinafter  described  and with
        the salary rates and provisions    of the General Appropriations
        Act with ,the exceptions hereinafter   provided inthi,s Section.

                  “.    . .

                 “Specifically excepted from the Position, Classifica-
        tion Plan hereinafter   described are . . . hourly employees,
        part-time,   and, temporary   employees;    and such other positions
        in the State Government     as have heretofore  been or as may
        hereafter   be excluded from such Position, Classification    Plan
        . . . by direction of the Legislature.   ” (Emphasis    supplied. )

That prwision     of the Act excepting ” . . . such other positioas       in the State
Government     as have heretofore    been. . . excluded.    . . by airection   of the
Legislature”,    is evidence of legislative    recognition   of the existence,    at the
time of the Act’s passage,     of departments     of the State Government which
had in the past utilized employment       plans different from that embodied in
the Act and the des,irability of allowing such departments         to continue to so
operate.    If such a construction    is not placed on that part of the Act quoted
above, the word., “heretofore”     in the statute is rendered meaningless.

         In Opinion No. WW-1095,     this office held that the Position Classifi-
cation Plan did not apply to the Finance Commission       and the Banking and
&rings    and Loan Departments    in view of the following language quoted
fra   the statutes applicable to those departments:

         (1)   Banking Department      (Art.   342-l   12,   V. C. S. )

                 ,I . . . Fees,  penalties and revenues collected by the
        Banking Department      from every source whatsoever       shall be
        retained and held by said Department,        and, no part d such
        fees,  penalties and revenues shall ever be paid into the
        General Revenue Fund of this State.        All expenses   incurred
        by the Banking Department       shall be paid only from such, fees,
        penalties and revenues,     and no such expense shall ever be a
        charge against the funds of this State.       The Finance Commis-
        sion shall adopt, and~from time to time amend, budgets which
        shall direct the purposes,     and prescribe    the amounts,  for which
        the fees, penalties and revenues of the Banking Department
        shall be expended; . . . ”
Hon.   William   A.   Harrison,   page 3    (WW-1262)




         (2)   Savings and Loan Department    ,(Art.    342-205,   V. C. S. , as
               amended)

                 “(b) . . . The Deputy Sayings and Loan Commissioner,
         the Savings and Loan Examiners       and all other officers and
         employees   of the Savings and Loan Department     shall receive
         such canpensation    as is fixed~ by the Finance Commission    which
         shall be paid frcm funds of the Savings. and Loan Department.”

                  “(h) . . . All expenses incurred by the, Savings and
         Loan Department      shall be paid only from such fees, penalties,
         charges, and revenues,     and no such expense shall ever be a
         charge against the funds of this State or the funds of the
         Banking Department.        The Finance Commission    shall adopt,
         and from time to time amend, budgets which shall direct the
         purposes,    and prescribe   the amounts, for which the fees,
         penalties , charges and revenues of the Savings and Loan De-
         partment shall bs expended; . . . ”

         In Opinion No. WW-1222,   we held that the Position Classification
Plan did not apply to the Texas State Board of Plumbing Examiners       under
the following language of Sections 5 and 7 of Article 6243-101,  V. C. S. :

                 “Sec. 5.    The Board shall administer     the provisions
         of this Act.   . . . The Board is hereby authorized and em-
         powered~ to employ,     promote and discharge    such assistants
         and employees     as it may deem necessary     to properly carry
         out the intent and purpose of this Act, and to fix and pay their
         compensation    and salaries   and to provide for their duties and
         the terms of their employment.       . . . ” (Emphasis   supplied. )

                 “Sec. 7. All expenses incurred under this Act shall be
         paid from the fees collected by the Board under this Act.     No
         expense incurred under this Act shall ever be a charge against
         the funds of the State of Texas . . . ; but no fees collected here-
         under shall ever be paid into the General Fund of this State. ”

        Article   21.28 of the Texas Insurance Code provides for the creation
and operation of the Liquidation Division of thenState Board of ,ksurance,      and
in view of the similarity   of the language of Section 12(a) and (b) of Article
21. 28 quoted below and the language of the statutes relating to the Finance
Commission      and the Board of Plumbing Examiners,     we are of the, opinion
that the Liquidation Division of the State Board of Insurance is exempt from
Hon.   William   A.   Harrison,   page 4     (WW-1262)




the operatianof    the Position Classification   Plan.   Section   12 of Article
21. 28 reads,   in part, as follows:

                 “Sec.  12.   Liquidator,   Assistants,  Expense Accounts.      --
        (a) Liquidator,   Bond.    The liquidator herein named shall be
        appdnted by a majority      of the Board of Insurance Commis-
        sioners,   and shall be subject to removal by a majority of said
        Board, and before entering upon the duties of said office,         shall
        file with the Board of Insurance Commissioners         a bond in the
        sum of Ten Thousand Dollars,($lO~, 000), payable to the Board
        of Insurance Commissioners        for the benefit of injured parties,
        and conditioned upon the faithful performance       of ‘his duties and
        the proper accounting for all moneys and properties         received
        or administered     by him.

                ‘l(b) Appcintments,   Expenses.     The Board shall have
        the power to appoint and fix the carnpensation        of the liquidator
        and of such special deputy liquidators,      counsel,    clerks,   or
        assistants,   as it may deem necessary.       The p ayment of such
        compensation    and all expenses of liquidation shall be made by
        the liquidator,   out of funds or assets of the insurer on appro;al
        of the Board.    . . . ” (Emphasis    supplied. )

         We are also of the opinion that your second question should be answered
in the ne~gative for the reason that an order of the Commissioner       placing the
Liquidation Division employees    under the Position Classification     Act would, be
tantamount to an abdication of those duties imposed upon the Commissioner
by Section 12(b) of Article 21. 28 to, “appoint and fix the compensation      of the
liquidator and of such special deputy liquidators,    counsel,  clerks,   or assis-
tants, as [he] may deem necessary.       . . .‘I

        Such an orde~r, purporting to transfer his statutory duties to another
administrator,  would be violative of the general rule announced in Corpus
Juris Secundum (Vol. 73, p. 381):

                  “In general administrative       officers and. bodies cannot
        alienate,    surrender,     or abridge their powers and duties, or
        delegate authority and functions which under the law may be
        exercised     only by them; and, although they may delegate merely
        ministerial     functions,    in the absence of statute or organic act
        permitting     it, they cannot delegate powers and functions which
        are discretionary       or quasi-judicial   in character,  or which re-
        quire the exercise       of judgment.”
Hon.   William   A.   Harrison,   page 5    (WW-1262)




Although we have founds no, Texas cases directly in point, we believe the
problem here presented is analogous to the situation involved in cases con-
cerned with the delegation of powers, by Commissioner’s    Courts and that
our question is controlled by the reasoning of such cases.   In Guerra V.
Rodriguez,  239 S. W. 2d 915   (Civ. App.  1951). we find the following
statement:



                 “In the absence of statutory authority,     the powers
        of a Commis~sioners’      Court involving the exercise    of judg-
        ment and discretion     can not be delegated,   and until delegated
        those powers reside with the court.        The power to hire wor-
        kers and to buy and hire tools, and equipment are not mere
        ministerial   functions which may be delegated.       Otherwise the
        Legislature    would have been under no necessity      to authorize
        the delegation of the functions of the court to a road commis-
        sioner or a road superintendent.        Those are powers that the
        Commissioners’       Court retains until they have been parceled
        out in accord with some statute authorizing       such a delegation
        of power.    . . . ”



         It is our opinion that the powers and duties conferred upon the Com-
miseioner     by Section 12b of Article 21. 28 may not be delegated, by him with-
out statutory authorization.




                                  SUMMARY




                 The Liquidation Division of the State Board of Insur-
         ance is not subject to the Position Classification   Act of 1961.
         The Commissioner      of Insurance is not authorized under
         Article 21.28 bf the Texas Insurance Code to enter an order
         placing the Liquidation Division of the State Board of Insur-
Hon.   Wimam     A.   Harrison,   page 6      (WW-1262)




         ante   under the Position   Classification       Act of 1961.



                                           Yours   very    truly,

                                           WILL WILSON
                                           Attorney General         of Texas




                                             Dudley D. g cCafla
DDM/pe                                       Assistant Akorney  General



APPROVED:

OPINION    COMMITTEE

W. V. Geppert,    Chairman
Pat Bailey
Elmer McVey
J. Milton Ricfiardson

REVIEWEDFORTHEATTORNEYGENERAL
BY:       Houghton Brownlee, Jr.
