Mr. D. F. Smallhorst            Opinion No. C-174
Executive Secretary
Texas Water Pollution Control   Re:   Various questions concern-
 Board                                ing the construction of
Austin 5, Texas                       Article 7621d, Vernon's
                                      Civil Statutes.
Dear Mr. Smallhorst:
          You have requested the opinion of this office on a
number of questions concerning the construction of Article
7621d, Vernon's Civil Statutes (State Water Pollution Control
Board Act). The questions will be stated and answered in the
order in which they were submitted.
          "(1) Does the personal representative of an
    ex-officio member of the Board, while engaged in
    the discharge of official Board duties on behalf
    .of and as authorized by'such member, stand in the
    place and stead of such member for purposes of
    attending, participating in and voting on matters
    arising at Board meetings and hearings?"
          Section 3(d) of Article 762ld, Vernon's Civil Stat-
utes, reads as follows:
          "Each ex-officio member of the Board listed
     in paragraph (c) above, is authorized to delegate
     to a personal representative from his office the
     authority and duty to represent him on the Board,
     but by such delegation a member shall not be re-
     lieved of responsibility for the acts and decisions
     of his representative."
          Under Section j(d) of Article 7621d, as quoted above,
a personal representative of an ex-officio member would stand
in the place of the ex-officio member for the purposes of Board
duties. This is evident from the language of the statute and
from the provision which places responsibility for the.acts and
decisions of the personal representative on the ex-officio mem-
ber. If the personal representative could not act in the place
of the ex-officio member there would be no need for the placing
of responsibility.
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Mr. D. F. Smallhorst, page 2   (C-174)


          "(2) If an ex-officio member of the Board
     is delegated the authority to take testimony in
     a hearing called by the Board, as authorized by
     Section 4(d), paragraph (21, . e e may such mem-
     ber delegate to a personal representative from
     his office the authority and duty to represent
     him for the purpose of taking testimony at such
     hearing?"
          Section b(d)2 of Article 7621d reads as follows:
          l'(d) The Board is hereby authorized to:


          "(2) delegate to one (1) or more of its
     members or to one(l) or more of its employees
  ~~ the authority to take testimony in any hearing
     called by the Board with power ~to administer
     oaths, but all orders entered shall be made by
     and in the name of the Board after its official
     action and attested to by the Executive Secre-
     tary;"
          Section b(d)2 of Article 7621d, as quoted above,
states that the Board is authorized to delegate authority to
a member or employee to take testimony in a hearing called by
the Board. From the wording of the statute, the authority must
be given by the Board to the person actually taking the testi-
mony at the hearing. This would preclude an individual member
making a delegation of authority to take testimony at a hearing.
The authority to take testimony must be given by the Board di-
rectly to,the person who,is to take the testimony.
          ‘“(3) May the Board in delegating authority
     to take testimony in a hearing called by the Board,
     as authorized by said SeCtion 4(d), paragraph (21,
     make such delegation to a named ex-officio member
     and further authorize such member to delegate such
     authority to a personal representative from his
     office?"
           Section k(d)2 of Article 7621d, as quoted earlier,
does not give the Board the power to delegate to one of its
,members the appointment power of the Board with respect to hear-
ing officers or persons to take testimony at a hearing called
by the Board. It therefore follows that a delegation of author-
ity to take testimony at a Board hearing must be made by the
Board itself.
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             Mr. D. F. Smallhorst, page 3   (C-174)



                       "(4) Is the duly authorized personal rep-
                  resentative of an ex-officio member of the Board
                  entitled to be reimbursed from funds available
                  for the purposes of Article 7621d for his actual
                  and necessary travel and other expenses incurred
                  in the discharge of official Board duties as such
                  personal representative, to the same extent that
                  the ex-officio member would be so entitled?"
                       Section j(e) of Article 7621d, reads as follows:
                       ltActualand necessary travel and other ex-
                  penses incurred by the three (3) ex-officio mem-
                  bers in the discharge of their official duties as
                  members of the Board shall be paid out of any
                  funds which are or may become available for the
                  purposes of this Act. Employees of the Board
                  shall receive their necessary traveling expenses
                  while traveling on the business of the Board."
                       Section 3(e) provides for the payment of the travel-
             ing expenses for the ex-officio members and the employees of
             the Board and makes no mention of the expenses of the personal
             representatives of such ex-officio members. In view of this
             language, the statute must be.construed as applying to the ex-
             offidio members and employees of the Board only. The personal
             representative would not be entitled to receive travel expenses
             under Section 3(e) of Article 7621d.
                       "(5) Are the moneys in Fund 273 expended under
                  operational control of Budget 49 funds of the Board
                  or expendable by the Board?"
                       The facts concerning Fund 273 as set out in your opin-
             ion request are as follows:
                       "To qualify for Federal funds under Public
                  Law 660, it is necessary for the qualifying agency
                  to develop a water pollution control program satis-
                  factory to the Public Health Service, account for
                  expenditures of Public Law 660 funds, and perform
                  other functions relative to the administration of
                  the program. Because of the limited staff author-
                  ized and available to the Board, the Board, which
                  is itself eligible to qualify for such Federal
                  funds, by resolution requested the State Department
                  of Health, which in the years prior to the estab-
                  lishment of the Board was the agency qualifying for
                                      -854-
                                                              .    .




Mr. D. F. Smallhorst, page 4     (C-174)


     such funds, to meet or continue to meet all
     requirements and to apply for and receive
     Federal funds for water pollution control ac-
     tivities in the State for the 1962 and 1963
     Federal fiscal years. A sin.iilarresolution
     was adopted for the 1964 and 1965 Federal fis-
     cal years. . . . At the request of the Board,
     the Health Department also furnishes fiscal
     and accounting services for the Board, as au-
     thorized by Section 3(h) of Article 7621d,
     thereby relieving the Board of the necessity
     of employing personnel to perform such serv-
     ices a The F'uhlicHealth Service funds together
     with other Federal moneys are delivered period-
     ically in a single Federal warrant made pay-
     able to the Treasurer of the State of Texas.~
     Upon the advice of the State Department of
     Health, the Federal water pollution control
     moneys are set up by the Comptroller in two'
     funds. One of these is Fund 153, which also
     receives moneys trans~ferredto the Board from
     other State agencies under Section 3(i) of Ar-
     ticle 76216. This fund is recognized by the
     Comptroller as a Board fund. The other is Fund
     273, which is a Health Department fund, recog-
     nized as such by the Comptroller. However, part
     of the money in Fund 273 is reserved by the
     Health Department for the Board to finance some
     of the Board's operations, and these expenditures
     are made under an operating control budget known
     as Budget 49. . . .'I
          According to the facts submitted, the moneys in Fund
273 are grants from the Federal Government to the Health Depart-
ment based on the qualifications and application of the Health
Department. The funds are carried by the Comptroller as Health
Department funds. Even though these moneys are budgeted to the
Board by the Health Department, they are still Health Depart-
ment funds until they are paid over to the-Board. The moneys.in
Fund 273 under Budget 49 would not be considered funds of the
Board and would not be expendable by the Board.
          "(6) Would a person on the staff of the
     Board whose salary is paid from Fund 273 under
     Budget 49 and who is subject to the supervision
     of the Executive Secretary of the Board, but who
     is also considered by the Health Department 'as
     an employee of that agency for retirement, armal
                         -855-
Mr. D. F. Smallhorst,'page 5    (C-1.74)


     leave and other purposes of personnel policy,
     be an 'employee' of the Board for the purpose
     of being eligible.tO have delegated to him the
     authority to take testimony in a hearing
     called by the Board, as authorized by said Sec-
     tion 4(d), paragraph (211"
          As stated in your question, the person‘would be paid
from Health Department funds, would be considered by the Health
Department as thelr.empIoyee;forpersonnel @urposes; and would
also~be considered an employee of the Health Department for re-
tirement and annual leave. Under the facts as stated, the per-
son.would be a Health Department employee and not an employee
of the Board.
    '_    "(7) Would a member of the staff of the
     Board whose salary is paid from Fund 153 and who
     is subject to the supervision of the Executive
   ~~~
     Secretary of the Board be an 'employee' for such
     purpose?"
       :.: The moneys in Fund 153 are Board funds, so'if a per-
son was paid by the Board, was subject to the supervision of
the Executive Secretary, and was hired under personnel policies
of the Board, the 'person would be en employee of the Board for
purposes of Article 7621d.
          "(8) Would a person retained as a profes-
     sional consultant under authority of Section 3(h)
     of the Act and compensated from.Fund 153 be an
     'employee' for such purposes?*
          Normally a professional consultant is not considered
an employee, but is considered an independent contractor. If
the consultant IS compensated on a retainer or fee basis and if
he is not subject to supervision in the details of his work, he
would be considered as an independent contractor.
          Section 3(h) of Article 7621d reads, in part, as fol-
lows:
          II
           . . .  the Board may employ end compensate
     with funds available therefor professional con-
     sultants, assistants and employees that may be
     necessary. . . .I'
          Section 3(h), quoted in part above, draws a distinc-
tion between professional consultants and employees and since

                        -856-
                                                                        .i   _   .   I,

.   *




        Mr. D. F. Smallhorst, page 6 ' (C-17k)~'-':"'


        Section 4(d)~2deals with employees and members only, the Legis-
        lature must have,intended to carry out this distinction with
        regard to authority to take testimony~at its hearings. It fol-
        lows that a professional consultant could not be considered an
        "employee" for purposes~of Section b(d)2 of Article 7621d.
                                 SUMMARY

                    Under Section 3(d) of Article 7621d of Vernon's
               Civil Statutes, a personal representative of an ex-
            : 'officio member of the Board,would stand in the place
               of the ex-officio member for the purposes of Board
               duties. .Under Section 4(d)2j the'authority to take
               testimony must be given by the Board directly to the
               person who is to take the testimony, Section 3(e)
               provides for the payment of the traveling expenses
             .~for the ex-officio membersand employees of the Board
               only and does not apply to their personal re resenta-
              'tives. The moneys in Fund ,273 under Budget I:
                                                            9 would
               not be considered funds of the Board and would not be
               expendable by the Board. A person paid from Health
          ~~X.Department funds:and considered .by the Health Depart-
         .. -:-me& as their employee for purposes of personnel
             ;q)olicy, retirement,,and annual leave-would notbe an
          ,:' employee of the Board,for purposes of Section 4(d>2.
               A person paid from Board funds, hired under Board per-
               sonnel policy, and subject to the control and supervi-
               sion of the Executive Secretary of the Board would be
               a Board employee for purposes of Section 4(d)2. A
               professional consultant would not be considered an em-
               ployee for purposes of Section &(d)2,of Article 7621d.
                                      Yours very truly,
                                       WAGGONER CARR
                                      .Attorney General

                                           a4Auh       fz%oma-
                                  2                  1'
                                      BY
                                            Jack G. Norwood
         JGN:wb                         Assistant
         APPROVED:
         OPINION COMMITTEE
        W. V. Geppert, Chairman
        .~GordonAppleman
        'Jerry drock
         Cecil Rotsch
         APPROVED FOR THE ATTORNEY GENERAL
         BY: Stanton Stone
                                 -857-
