THE ATTORNEY GENERAL 

OF' TEXAS 

Hon. Fred Hartley Opinion No. O-1507 

Ass1 st ant Cr imlnal Her (a) Is-it legal 

District Attorney 

Waco, Texas 

for the Assistant 

County School Superintendent to sign the 

Superintendent’s name to vouchers issued 

by the trustees of a common school distr ict? 

(b) May the Superintendent give his Assistant 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. 

tees, 65 S.W. 878. 

Webb County vs. Board of School TrusArticle 2693 of the Revised Statutes of Texas describes 

the general duties of the County Superintendent as follows: 

“The county superintendent shall approve all vouchers 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 fiirther 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 authorized 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 reasonable 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 attzcllr 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 synonymous, for there is a recognized distinction between them. 

A deputy is a person appointed to act for another, a substitute 9 a delegate o an agent; while an assistant is one 

who helps, aids or assists. tAssistant’ is the more comprehensive term. A deputy may be said to be an. assistant, but public officers have assistants who are not deputies. 1 AssistantP includes those who aid, whether sworn 

or not sworn- while p deputy 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.29 S.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 absence of a statutory provision to the contrary, the assistant 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 appellant 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. 3 ei it was stated that an ‘assistant, as used 

in the Act & March 14, 1864, providing for the appointment for an additional Assistant Secretary of the Treasurer, 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 provided 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 provision the assistant never acts officially for the principal. 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 principal. 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. 

Antonio Water Supply Company (Civ.App.) 193 S.W. 

6 0; 

2 

Green vs. San 

county vs. 

53; Navarro 

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 applies. It can ordinarily make no difference to any one 

by whom the mere physical act is performed when its performance 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 expressly 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 ministerial 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 Depertment of Education giving their opinion that it was proper 

for his assistant to sign said vouchers, as it was practically impossible in the larger counties for the superhtendent 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 statutes 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 authority, the legislature must have intended for someone to 

fulfill that duty.” (Parenthesis and undarscorlng ours.) 

The signing of the vouchers by the Assistant County Superintendent under the circumstances as set forth in your letter 

carries with it the authority to approve such vouchers. The approval or disapproval of a voucher may legally be done only by 

the County Superintendent in person* 
Hon. Fred Hartley, page 5 (O-1507) 

in Article 2697. suora. is not a u~elv~ministerial. non-discreThe ElpProval of all vouch PS leaallv drm as provided 

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 language 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 indebtedness 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 making of a ‘legally drawn’ voucher 

its legality. We think his rela J ion to the school fund 

and from such tdecide~’ 

is somewhat analogous to that of a county auditor with 

respect to county funds.” .- 

In view of the foregoing authorities you are respectfully 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 Superintendent to the vouchers does not require the exercise cf judgment or 

discretion on the part of the assistant; but is purely a mihisterial or mechanical act which can be delegated by the Couhty Superiutendent . 

Trusting that the above satisfactorily disposes of your 

inquiries, we remain 

APPROVED, DEC 7, 1939 

/s/ Gerald C. Mat-m 

ATTORNEY GENERAL OF TEXAS 

APPROVED: OPINION COMMITTEE 

BY: BWB, CHAIRMAN 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

By /s/ D. Burle Davies 

D. Burle Daviss, kssistant 

DBD: pbp :wb