            THE      ATTORNEY          GENERAL
                          OF' TEXAS




Hon. Fred Hartley          Opinion No. O-1507
Ass1 st ant Cr imlnal      Her (a)    Is-it legal for the Assistant
District   Attorney        County School Superintendent to sign the
Waco, Texas                Superintendent’s  name to vouchers issued
                           by the trustees  of a common school dis-
                           tr ict?
                           (b) May the Superintendent give his As-
                           sistant power of attorney to sign such
Dear sir:                  vouchers?
          We have received your letter  dated November 18, 1939,
wherein you request the opinion of this Department upon the above
stated questions.
            The office     of County School Superintendent   is not a
constitutional     office,   but is provided for by statute,   and the
duties of the County School Superintendent generally         are such as
his title    indicates.     He is in truth superintendent   of the county
public schools;      such schools are managed, controlled,    operated
and maintained under his superintendance.         Though in a sense a
county officer,      and called Vounty Superintendent,”     he is in fact
the officer    of the State.     Webb County vs. Board of School Trus-
tees, 65 S.W. 878.
              Article 2693 of the Revised Statutes of Texas describes
the general     duties of the County Superintendent as follows:
             “The county superintendent   shall approve all vouch-
      ers legally   drawnagainst the school fund of his county.
      He shall examine ail tne contracts     between the trustees
      and teachers of his county, and if       in his judgment,
      such contracts    are proper, he shall approve the same;
      provided,   that in considering   any contract between a
      teacher and trustees he shall be authorized to consider
      the amount of salary promised to the teacher.       He shall
      distribute   all school blanks and books to the officers
      and teachers of the public schools,      and shall make such
      reports to the State Superintendent as may be required
      by that officer.     He shall discharge such other duties
      as may be prescribed    by the State Superintendent.”
          The statutory provisions   with respect to an Assistant
County Superintendent are meager.    Article 2700, Revised Statutes
of Texas, dealing primarily with the salary and expenses of the
county school superintendent,   reads in part as follows:
Hon.   Fred Hartley,   Page   2   (O-1507)

              “The county board of trustees may make such fiir-
       ther provisions    as it deems necessary for office    and
       traveling   expenses for the county superintendent     and
       any assistant   he may have; provided that expenditures
       for office   and traveling   expenses shall not exceed
       three hundred dollars per annum, and the county board
       of trustees may make provisions      for the employment of
       a competent assistant     for the county superintendent
       who shall,   in addition to his other duties,    act as
       attendance officer;     and said board is hereby author-
       ized to fix the salary of such assistant      and pay the
       sane out of the same funds from which the salary. and
       expenses of the county superintendents      are paid; . ..I’
              Although no express authority to employ an assistant
county school superintendent        is conferred by the statute,   either
on the board or on the superintendent,         it is held that a reason-
able and necessary construction        leads to the conclusion   that the
superintendent       is vested with the power to select one.     There
are no provisions       in the statutes describing   the duties of an
assistant    county superintendent,      except that he is to act as at-
tzcllr      o,ff icer 9 and he is not required to furnish bond or take
          . Neeper vs. Stewart, (Civ.App.)       66 SoW.(2d) 812.
            We quote from Tex,JurO,     vol.   34, pp- 601 and 607, as
follows:
              “The terms ‘deputy’ and @assistant’ are not synony-
       mous, for there is a recognized distinction          between them.
       A deputy is a person appointed to act for another, a sub-
       stitute 9 a delegate o an agent; while an assistant         is one
       who helps, aids or assists.        tAssistant’   is the more com-
       prehensive term.     A deputy may be said to be an. assist-
       ant, but public officers     have assistants    who are not depu-
       ties.    1AssistantP includes those who aid, whether sworn
       or not sworn- while pdeputy s implies only the sworn class.
       Again as a rule a deputy may do anything that can be
       done ?I, his principal,    while an assistant’s      duties are to    ”
       be performed in connection with and under the direction
       of the principal.     Authority given’an officer        to appoint
       a deputy does not empower him to appoint, or to create
       the office    of an assistant.      But the fact that a deputy
       is described    In a transaction    as an assistant,     or vice
       versa, will not invalidate      his acts.”     Nail1 vs. State,
       I.29S.W. 630; Neeper vs. Stewart, (Civ.App.1 66 S.W.(Zd)
       &G&; Cook vs. Knott, 28 Tex. 85; Rose vso Neuman, 26 Tex.
            0
              “The duties of an assistant,    as distinguished    from a
       deputy, already noticed,     are to be performed in connection
       with and under the direction      of the principal.     In the ab-
       sence of a statutory    provision   to the contrary,    the assist-
       ant never acts for the principal,~and      his capacity is more
       clerical   than otherwise.t’
.      .




Hon. Fred Hartley,        page 3 (O-1507)


           In the case of Nail1 vs. State, 129 S.W. 630, the appel-
lant was convicted in the District   Court of El Paso County, Texas,
of bribery of the assistant  city attorney of El Paso, Texas.
Judge McCord, in his opinion, wrote the following:
              “We are therefore     confronted with the proposition
       whether *assistant      attorney’. and ‘deputy’ means the
       same thin        In the case of United States vs. Adams (C.C.)
       24 Fed. 3ei      it was stated that an ‘assistant,         as used
       in the Act & March 14, 1864, providing for the appoint-
       ment for an additional       Assistant Secretary     of the Treas-
       urer, means one ‘who stands by and helps or aids another.
       He is not a deputy, and cannot, therefore            act in the
       name of and for the person he assists,          but only with him
       and under his direction,       unless otherwise expressly pro-
       vided by law. I An assistant        does not mean a deputy.
       Clerks and other public officers         have assistants    who are
       not deputies,      though a deputy is an assistant.        The word
       cassistantf     is more comprehensive than the word ‘deputy,’
       including those who aid, whether sworn or not sworn
       while ‘deputy’ implies only the sworn class.             See Nilison
       vs. Stevenson, 22 Ky, 271.         There seems to be a distinction
       recognized     by all authorities,     and it will be found in
       every standard dictionary,        between the word ‘assistant’       and
       the word ‘deputy. 1 They are not recognized           as synonymous
       terms.     The lassistantl    is universally    defined as one who
       aids, helps, or assists,       while the word ‘deputy’ is defined
       to be a person appointed to act for another, a substitute,
       a delegate,     an agent.    In the absence of any statutory pro-
       vision     the assistant    never acts officially     for the princi-
       pal.    3 6 is not required to be sworn, nor to give bond.
       His capacity is more clerical         than otherwise,   while a deputy
       has a more enlarged meaning, and may do anything that his
       principal     can do.   Our law authorizes     and creates the office
       of deputy sheriff      and deputy clerk, and they are authorized
       and empowered to do anything that can be done by the princi-
       pal. It
             The County School Superintendent,    being in fact a State
officer,   cannot delegate his public duties to others, which duties
are judicial    In their nature, and call for the exercise     of reason
or discretion,    as these duties are regarded as a part of the public
trust assumed by him. Nail1 vs. State, 129 S.W. 6 0; Green vs. San
Antonio Water Supply Company (Civ.App.)        193 S.W. 2 53; Navarro
county vs. Tulles,     (Civ.App.3 237 S.W, 982; Horne Zoological     Arena
Company vs. City cC Dallas,      (Civ.,App.) 45 S.W.(2d) 714.
                Mechem, on Public    Offices and Officers,  at page 370, has
this       to say about delegation    of mechanical or ministerial  dutiesr
                                                                  .     .




‘Hono Fred Hartley,   page 4 (O-1507)


             “Para - 568. Mechanical or ministerial    Duties
      may be delegated.--Where,     however, the question arises
      in regard to an act which is of a purely mechanical;
      ministerial    or executive nature, a different   rule ap-
      plies.    It can ordinarily   make no difference  to any one
      by whom the mere physical act is performed when its per-
      formance has been guided by the judgment or discretion
      of the person chosen.      The rule, therefore,  is that the
      performance of duties of this nature may, unless express-
      ly prohibited,    be properly delegated to another.
             “Where, however, the law expressly   requires the act
       to be performed by the officer    in person it can not,
       though ministerial,   be delegated to another.”
            Throop,   on Public   Officers,   at page 511,   defines   a min-
isterial   act:
          ’ “A ministerial act may perhaps be defined to be one,
      which a person performs in a given state of facts,   in a
      prescribed  manner, in obedience to the mandate of legal
      authority,  without regard to, or the exercise  of, his own
      judgment upon the propriety   of the act done.”
       We quote from your letter8
              “Mr, Batson (County Superintendent of McLennan
      County) also received a letter      from the State Depert-
      ment of Education giving their opinion that it was proper
      for his assistant     to sign said vouchers, as it was prac-
      tically    impossible  in the larger counties for the super-
      htendent to be present at all hours that people might come
      in to have vouchers approved.       At any rate, it seems to be
      the custom thr&ghou,t the state for the assistant         in the
      off ice to aua ove such voucm          and in this office   such
      has been the &stom for the pase twenty-four        years.
              “lf you recall    Article   2690 of the revised civil    stat-
      utes the County Superintendent is required to spend four
      days cut of the week visiting         the schools in session in his
      county.      Therefore,   someone must act in his olace in hj&
      &senca end it is our opinion that even though there is no
      specific     statutory provision     givlng an assistant    such au-
      thority,     the legislature     must have intended for someone to
      fulfill     that duty.”     (Parenthesis   and undarscorlng   ours.)
           The signing of the vouchers by the Assistant County Su-
perintendent  under the circumstances  as set forth in your letter
carries with it the authority to approve such vouchers.     The ap-
proval or disapproval  of a voucher may legally   be done only by
the County Superintendent in person*
Hon. Fred Hartley,    page 5   (O-1507)


            The ElpProval of all vouch PS leaallv drm   as provided
in Article 2697. suora. is not a u~elv~ministerial.     non-discre-
tionary act, bet is. oni that requires the exercise   of judgment
and discretion.    Tn the case of Palmer Publishing Co. vs. Smith,
109 S.W.(2d) 158, Commissioner Martin, speaking for the Court,
wrote:
            “The clause ‘legally   drawn a ainst the school fund
      of the county, 1 as used in Art. 2%93, supra undoubtedly
      confers upon hi@ authority to decide as to jhe legality
      of the form of such vouchers.      If we consider this lan-
      guage in connection with the ‘educational       set-up’ of each
      county, we have no doubt it goes further than this and
      authorize ah inquiry by him into the legality        of the in-
      debtedness represented by such voucher.        We need inquire
      no further than whether or not he can pass his judgment
      on any one or more of the elements which go into the mak-
      ing of a ‘legally    drawn’ voucher     and from such tdecide~’
      its legality.     We think his rela J ion to the school fund
      is somewhat analogous to that of a county auditor with
      respect to county funds.”         .-
            In view of the foregoing authorities you are respect-
 fully advised that it is the opinion of this Department that both
.of your questions should be answered in the negative.
            However, as a limitation   and further explanation       of the
above conclusion,   if the County Superintendent     first    approves the
vouchers and then instructs    his assistant   to sign his (the County
Superintendent’s)   name, this presents a different       situation.    The
mere physical act of signing the name of the County Superintend-
ent to the vouchers does not require the exercise         cf judgment or
discretion   on the part of the assistant;   but is purely a mihister-
ial or mechanical act which can be delegated by the Couhty Super-
iutendent .
             Trusting that the above satisfactorily     disposes   of your
inquiries,    we remain
APPROVED, DEC 7, 1939                     Yours very truly
/s/ Gerald C. Mat-m                       ATTORNEY  GENERALOF TEXAS
 ATTORNEY GENERALOF TEXAS                 By /s/ D. Burle Davies
                                          D. Burle Daviss, kssistant
APPROVED:OPINIONCOMMITTEE
BY:     BWB, CHAIRMAN
DBD:pbp :wb
