### THE ATTORNEY GENERAL OF' TEXAS

Hon. Fred Hartley Opinion No. O-1507 Ass1stant Crimlnal Her (a) Is-it legal District Attorney Waco, Texas for the Assistant County School Superintendent to sign the Superintendent’s nameto vouchers issued by the trustees of a commonschool district? (b) Maythe Superintendent give his Assistant power of attorney to sign such Dear sir: vouchers?

Wehave 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, andthe duties of the County School Superintendent generally are such as his title indicates. Heis in truth superintendent of the county public schools; such schools are managed, controlled, operated andmaintained under his superintendance. Though in a sense a county officer, and called Vounty Superintendent,” he is in fact the officer of the State. tees, 

### 65S.W. 

### 878. WebbCounty 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 amountof salary promised to the teacher. Heshall distribute all school blanks and books to the officers andteachers of the public schools, and shall makesuch reports to the State Superintendent as maybe required by that officer. Heshall discharge such other duties as maybe prescribed by the State Superintendent.” The statutory provisions with respect to anAssistant 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 maymakesuch fiirther provisions as it deemsnecessary for office and traveling expenses for the county superintendent and any assistant he mayhave; provided that expenditures for office and traveling expenses shall not exceed three hundred dollars per annum,andthe county board of trustees maymakeprovisions for the employment of a competent assistant for the county superintendent whoshall, 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 samefunds 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 bythe statute, either on the board or on the superintendent, it is held that a reasonable andnecessary 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,fficer 9andhe is not required to furnish bond or take

. Neeper vs. Stewart, (Civ.App.) 

### 66SoW.(2d) 812. Wequote from Tex,JurO, vol. 

### 34,pp- 601 and607, as follows:

“The terms ‘deputy’ and @assistant’ are not synonymous, for there is a recognized distinction between them. Adeputy is a person appointed to act for another, a substitute 9a delegate oan agent; while an assistant is one whohelps, aids or assists. tAssistant’ is the more comprehensive term. Adeputy maybe said to be an.assistant, but public officers have assistants whoare not deputies. 1

AssistantP includes those whoaid, whether sworn or not sworn- while p deputys implies only the sworn class. Again as a rule a deputy maydo anything that can be done ?I, his principal, while an assistant’s duties are to ” be performed in connection with andunder the direction of the principal. Authority given’an officer to appoint a deputy does not empowerhimto 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 

### 66S.W.(Zd) &G&;Cook vs. Knott, 28 Tex. 

### 85;Rose 

### vsoNeuman,

### 26Tex. 0

“The duties of an assistant, as distinguished from a deputy, already noticed, are to be performed in connection with andunder 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’ meansthe samethin 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, meansone ‘who stands by andhelps or aids another. Heis not a deputy, and cannot, therefore act in the nameof andfor the person he assists, but only with him andunder his direction, unless otherwise expressly provided by law.I Anassistant does not meana deputy. Clerks and other public officers have assistants whoare not deputies, though a deputy is an assistant. Theword cassistantf is more comprehensive than the word ‘deputy,’ including those whoaid, whether sworn or not sworn while ‘deputy’ implies only the sworn class. SeeNilison vs. Stevenson, 22Ky, 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. 36 is not required to be sworn, nor to give bond. His capacity is more clerical than otherwise, while a deputy has amore enlarged meaning, and maydo anything that his principal can do. Our law authorizes and creates the office of deputy sheriff and deputy clerk, and they are authorized and empoweredto do anything that can be done by the principal. It TheCounty 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 assumedby him. Nail1 vs. State, 129 S.W. Antonio Water Supply Company (Civ.App.) 

### 193S.W.

### 60; 2 Green vs. San county vs. 

### 53;Navarro

Tulles, (Civ.App.3 237 S.W, 982; Horne Zoological Arena Companyvs. City cCDallas, (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. .

‘HonoFred Hartley, page 4 (O-1507)

“Para- 568. Mechanical or ministerial Duties maybe 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 makeno difference to any one bywhomthe mere physical act is performed whenits 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 aministerial act:

’ “Aministerial act mayperhaps 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.” Wequote 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 office 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 andundarscorlng 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 maylegally 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-discreTheElpProval of all vouch PSleaallv drm as provided tionary act, bet is. oni that requires the exercise of judgment and discretion. Tnthe 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, 1as 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, wehave no doubt it goes further than this and authorize ah inquiry by him into the legality of the indebtedness represented by such voucher. Weneed 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. Wethink his rela ion to the school fund J and from such tdecide~’ is somewhatanalogous 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 andfurther explanation of the above conclusion, if the County Superintendent first approves the vouchers andthen instructs his assistant to sign his (the County Superintendent’s) name, this presents a different situation. The mere physical act of signing the nameof the County Superintendent to the vouchers does not require the exercise cf judgment or discretion onthe part of the assistant; but is purely amihisterial or mechanical act which can be delegated by the Couhty Superiutendent

.Trusting that the above satisfactorily disposes of your inquiries, weremain APPROVED,

DEC7, 1939 /s/ Gerald C. Mat-m ATTORNEY

GENERAL

OFTEXAS APPROVED:

OPINIONCOMMITTEE BY: BWB,CHAIRMAN Yours very truly ATTORNEY

GENERAL

OFTEXAS By/s/ D. Burle Davies D. Burle Daviss, kssistant

DBD: pbp:wb