Mr. D. F. Smallhorst
Executive Secretary
Texas Water Pollution
  Control Board
1100 West 49th Street
Austin 5, Texas
                          Opinion No. W-1431
                          Re:   Whether the Executive Secre-
                                tary of the Texas Water Pol-
                                lution Control Board is an
                                "Executive Head of a State
                                Agency" as used in the Gene-
Dear Mr. Smallhorst:            ral Appropriations Act.

       We are in receipt of your request for an opinion
on the above question in connection with the newly created
State Water Pollution Control Board.
       Article 762~ of Vernon's Civil Statutes, which es-
tablishes this Board, states in part as follows:


           "Sec. 3. (a) There is hereby created
      and established a State Water Pollution
      Control Board which shall be composed of
      six (6) members. The Board is directed to
      carry out the functions and duties confer-
      red on it by this Act. . . .
              .   .   .

           "(c) The SIX (6) members of the Board
      shall receive no fixed salary for duties per-
      formed as members of the Board, but each
      member, excepting those representing speci-
      fied State agencies, shall be allowed, for
      each and every day in attending meetin s of
      the Board, the sum of Twenty Dollars (820)
      including time spent in travel to,and from
      such meetings, and all members shall be
Mr. D. F. Smallhorst, page 2 (ww-1431)


      allowed traveling and other necessary ex-
      penses while in the performance of official
      duty, to be evidenced by vouchers approved by
      the Chairman of the Board, provided no member
      shall receive more than Two Thousand Dollars
      ($2,000) annually, including expenses. The
      members of the Board appointed by the Governor,
      and confirmed by the Senate shall qualify by
      taking the Constitutional oath of office before
      an officer authorized to administer an oath
      within this State, and, upon presentation of
      such oath, together with the certificate of
      appointment, the Secretary of State shall is-
      sue commissions to them, which shall be evi-
      dence of their authority to act as such. In
      addition to the three (3) members appointed by
      the Governor as provided herein, the Board
      shall also consist of the following State of-
      ficers, each of whom shall be a member of said
      Board during the time that he is serving in
      such other official capacity, to wit: the
      Chairman of the State Board of Water Engineers,
      the State~Commissioner of Health, and the Exe-
      cutive Secretary of the State Game and Fish Com-
      mission, each of whom shall perform the duties
      required of a member of the Board by this Act
      in addition to those duties required of him in
      said other official capacities.
           I!. . .

           "(e) Actual and necessary travel and other
      expenses incurred by the three (3) ex-officio
      members 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.
            II. . .

           "(g) The Director of the Water Pollution
      Control Division of the Texas State Department
      of Health shall serve as Executive Secretary of
      the Board. He shall keep full and accurate-
      minutes of all transactions and proceedings of
      said Board and perform such duties as may be re-
      guired by the Board, and he shall be the custodian
      of all files and records of the Board. The
Mr. D. F. Smallhorst, page 3 (WW-1431)


         executive secretary shall be the adminis-
         trator of water pollution control activi-
         ties for the Board." [Emphasis added).
       Section 35a of Article V of Senate Bil! No. 1, Acts 57th
fE$islature, 1st Called Session 1961, provides in part as fol-
  1:s:

              "Executive heads of State agencies, in-
         cluding the Executive Director of the Legis-
         lative Council, shall be reimbursed for their
         actual meals, lodging and incidental expenses
         when traveling on official business either in
         or out of the State." (Emphasis added).
       An inspection of Article 7621d leads us to the conclu-
sion that t'neposition of Executive Secretary of the k!ater
Pollution Control Board does not involve merely clerical
duties or amount to a subordinate position, but is a position
wherein the Executive Secretary is primarily responsible for
the administration of water pollution control activities over
the entire State. He is therefore an "Executive head of a
State agency," and as such, entitled to reimbursement for his
actual expenses while traveling in the course of his official
business for the Water Pollution Control Board either in or
out of the State.
                          SUMMARY
         The Executive Secretary of the Texas Water
         Pollution Control Board is the executive
         head of a state agency, and as such, is en-
         titled to reimbursement for his actual ex-
         penses while traveling on official business
         either in or out of the State.
                            Yours very truly,
                            WILL WILSON




                                Assistant
FD\\J
   :ms
                                         -   .




I,Ti-.
    D. F. Smallhorst, page 4 (WW-1431)




0PI:IIONCOMNITTEE
V1.V. Geppert, Chairman
L. 1. Lollar
Arthur Sandlin
Ernest Fortenberry
REVI.Z?JED
         FOR THE ATTORNEY GENERAL
By: Leo:lardPassmore
