               OFFICE        OF    THE       ATTORNEY        GENERAL        OF    TEXAS
                                                  AUSTIN




                                                                                      May 3,   1939



Honorable         Tom L.         Beaucheap
Seorettrry        0r     State
kubtln,        Texas

Dear    Sir:




                                                                   the    Searetcry
                                                                         berore   the




                                         the     Aaalstant      Soorstary        of



                        '\
                  *(4).--h at tlmos         the Aaalstant     Soorvttrry Of
                  State should algn osrtifloatss             and other doou-
                  manta rt8 A,sslstant       Secretary     of Stat8 and at
                  other   tla.8    am Aotlng     Secretary    of State,  than
                  when should he sign as Aotlnq awl when aa
                  Assistant     .5.oorotory    of State'?"
Honorclble   Tom L.    tieauohamp,    yl:~y 3,   1 e.79, l'ug1~ 2




              It will bo observed    that the ertlcla    of the statute
above   referred     to provides that the i+snlstcint jeoretory    of
State   "shall    perform all the duties   required    by lnu to be
performed     by the Seorotflry  of Stuts rhsn the said Seoratary
of Stats 1s absent or unable to sot for any reason.             Suoh
Asslstsnt     shall perform ruch other duties      ar, shall be rd-
qulrrd of him by the :Yeoratary of Stats....w

            By virtue    0r the prorlalons   0r the stutute,  the auth-
ority   of the Assistant    Seoratarp   of State to sot at all de-
pends upon the happening or oertain        events xesorlbsd   by the
Eitatute.

             By th. seoond oontlngenoy          presorlbed      by the statute,
the Aaelstant     Seorstary     of State le authorized          to and rsqulrsd
to perform such duties         ae the Seoretory       of State shall delegate
to him for performanoe.           Under thle eeotion        of the statute,
then, the authority        of the Assistant       Sooretary     of State     to per-
form a partloular       duty depende upon whethsr ths Soorotary of
State has lnatruoted        hl!+ to perform suah duty.           The full      auth-
orlty   of the Aealstant       Seorstary     of State    thus to aot arises
rrom the et::tuts      lnveatlng    him with suoh authority            when the
oontlngsnoy     mentioned in the statute          la met - that is, whan
the authority     to perform the partloul,,r          aot has been delegated
by the Secretary      of State.       There 1s no unlawrul          dalagatlon     ot
authority    by the Seoretary       of State,     ror the Seoretary         of State
and the Asalstant       Seoretary     of State are both oraaturem of the
law.    The duty and the authority           to aot is an lnoldent          cl the
orrioe,   and not 8 personal        one, and there 1s nothing to ?rohlblt
the lsglslaturs      from authorlzlog,        am it haa in this aot, the
p0rronnanoa     of oertaln     a tetim   lttaohed    to the 0rri0e       0r Soore-
tary of Stats by the Aeslstant            Ssoretary     of State when the
Secretary    of State shall       see fit to roqulrs        the perfonaanoe        of
suoh duty by the.Aaalstunt           Seoretary    of Stats.       Prdfer      Y.
Mahnke et al,      (Commission of Appeals,          Seotlon    8, opinion      adopted
by the Ziuprems Court ) 260 S. U. 1031.

            On the other hand, hy virtue  of the provisions    or the
statute,  eren though there may be no delegetlon    of authorltf    by
the Seoretary   of State, yet in the event the Sooretary    of State
1s absent or unable to aot for any reason,    the Assietant    Seors-
tary of State 1s authorized   by the statutes   to perrorm -all ths
Honorable     Tom L. Beauchamp,          May 3,   19?9,   Page 3




dutlse required   by law to be performed    by the Seoretnry    of State.
If the oontlngenoy   mentioned  ln this partloular    aeotlon   or the
aot 000urs,   the authority  of the Asolstant   Seoretary    or state
to aot la oomplete.

             The purpoee or the atatute          olted    above 1s obviously
to expedite     and faoilitate     the perfotmanoe        of the dutlea lm-
posed by law upon the offloe          of Seoretary       or State,     The aot
should be liberally       oonstrued     so aa to give lfieot        to that pur-
pose.     With this purpose in mind, it is the oplnlon               of this de-
partment thAt it 1s not neoessary           that the Seoretary         of State
be absent rroa ths olty before the Asslcttant Seoretsry                  of State
would be authorized       to aot, but, on the oontrary,            that his ab-
son08 tram the orrloe        or the Secretary       or State at the time the
oooaslon    ror acting    arlsee   1s aufflolent       to authorize     the An-
slstant    Seoretary   of State to aot in hls stead.             Llkewlee,     it
is the opinion      of this department      that the phrase “unable to
aot ror any reason” ohould be liberally              oonstrued,     and thct the
inability    of the Seoretary      or State to aoti a8 therein           oontem:
plated,    may oonsist    ot or be brought about by the volume of
other work oommanding ths attention            ot the Yeoretary        of State
and preventing      him from aotlng in respeot          to oertaln     duties
or his orrloe,      as well as by phyaloal or mental inability                to
act.

            You are further     advised,  that,   slnoe the aots of
pub110 otfloers     are presumad to have been done in the proper
exerolse   0r legltlaate    powaro, unless    the oontrary  be shown, the
raot that the Aaalrtant      Secretary   of St::te aots in a partloular
matter glrrs rise to the preeumptlon        that the oondltlons   pre-
sorlbed  br the atatute     authorizing   him to aot have arisen.
Proffer  f. Mahnke, olted     aboro.

              Your’flrst      question     above quoted     la   thsretore   answered
in the   negative.

              Your   seoond    queotlon     1s answered     by the    discussion
above.

           In anawar to your third     question,    you are: advised   that
It   16 theopinion  of this deprrtnent    that   the Asuletant    Seorstary
0r State,  when authorized  by the happening      of any or the oondl-
tlona above mentioned to sign oertltlcatee,         should sl~n them as
!!onorable     Ton L. Baauohamp,   May 3,     1939,   Page 4




Assletant   Seoretary  of State.       There la DO prorlolon     in the statute
lor suoh an olftoer aa "Aotlng         Seoretory   of State."    If the algna-
ture la aa haalstant     Seoratary     of State,   the prarumptlon   above
rafarred  to would attaoh;      but    it la doubtful    that auoh a presump-
tlon would attaoh td the aot of          an aotlng  Saoretary  of State where
no suoh orrloe    is prorlded   ror    by law.

            In anmer to your fourth     question,   you are advised that
In our opinion   whenever ths Asel&xmt     Beoratnry   of Stnte may af-
fix his signature     to any dooument by vlrtua    of the happening of
the oondltlom    above rnantloned,   he ahould sign 44 Assistant
Ssoretary   of Stats,   and in no lmtanoe    should ho elgn an Aotlng
Saoratary   or Stats.
               Xe trust  that this opinion     will    annwer   all   of   the in-
qulrias      to your entire   satl8faotlon.



                                                ATTORNEYSfiNEEW. ;F TEXAS




                                                      Rlohard   VI. Falrohlld
                                                                    Anslatant

RW:FL

APPROVED:



AT'I'ORNEY
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