R-581

-, OFFICE OF



# THEATTORNEY GENERAL

AUS~N~ TEXAS

PRICE DANIEL ATTORNEY

GENERAL June 30, 1947

- Hop. John A. Hulen, Chairman,.

Texas National GuardArmory Board, Second National,Bank Building, Houston 2, Texas ', Opinion ETo.V-286 Re: Authority~o?~ Chairmanof the Texas National GuardArmory Board to approve for payment all obligations 0r the Board. Dear General Hulen:

Your.,request-for an opinion of this department is substantially as follows: "The Texas National Guardis in the process of reorganization. This reorganization has caused the'Tex%s National.Guard ArmoryBoard to broaden it&field o? operations. Asyou knowit is the duty of the ArmoryBoard to provide armories andother fdailities for ~the units o? .the National Guard. 4 "Antiber of armories have been rented and are scattered over the State; others, will be rented or construoted. Therental and other charges must be paid bythe ArmoryBoard out of appropriations madeavailable for this purpose by the Legislature. Thenumberof doouments andvouchers submitted to the Comptroller are numerous. TheComptroller requires the approval of at least three membersof the Armory Board on each of the documents submittea for payment. Dueto the faot that the Board Membersreside at different places in the State, this requirement causes considerable delay in the payment of accounts. The Comptroller, whenrequested to pass these aoouments With the approval only of the Chairmanof the Board, suggested that hewould beHon. John A. Hulen, - Page 2 Opinion NO. V-286

dlaa to do so if such uro~oe;~lreceived the

. Such proapproval of the Attornep cedure, **0r** course, would resolution of the Armorybe based on a proper Board.

“In view of this request weenclose herewith copy of the Comptroller, ora resolution or the ArmoryBoard authorizing the Chairman or the Board to approve for paymentall obligations of the ArmoryBoard incurred against the monies appropriated by the Legislature to the different accounts of the Board.

“Will you, therefore, please advise whether, in view of, the rovisions Act (Art. 5890b7 of the Armory Board

the Boardmayauthorize the Chairmanto approve for payment on behalf o? the Board the documents andoharges against the funds appropriated bythe Legislature to the different aocounts of the Armory Board.” Theresolution adopted by the Board purporting to authorize t,he Chairmanof the Board to approve for payment onbehalf of the Board various documents andoharges is as follows:

“Resolution adopted by-the Texas National Guard~ArmoryBoard at a regular meeting hela June 6, 1947, in the city of Austin, Texas: Y3.ESOLVED,

that the Chairman of the Board of the Texas National GuardArmory,Boara be, and he is hereby, authorized to approve for payment on behalf of the Ar- . mory Boar&all vouchers, expense acoounts, payrolls, rentals, and.other aoquments which have heretofore been approved by the several membersof the Board before submission to the Comptroller o? the State of Texas for payment; that such approval by the Chairmanshall constitute the approval of the Board.” Article 5890b, Vernonts Civil Statutes, provides in part as roihis:

“Section 1. There is hereby createa the Texas National GuardArmoryBoard to be composed of rive (5) memberswhoshall serve with-_- Hon. John A. Hulen, - Page 3 Cpinion No. V-286

out compensation other than their actual, ne- : cessarg expenses while traveling on the business of the Board.

. . n

. . . "The Board shall aot by resolution at a meeting thereof called, andheld in accordance with its by-laws or rules.and regulations. Three (3) membersof the Board shall con&it,ute a quorumfor the transaction of business at all meetings andany ao.tion taken by the majority of the membersof the Board present at anymeeting thereof shall be deemedto be the action of the Board for all purposes; but if four (4) membersare present ana voting, an equal vote in both affirmative and negative shall, defeat the proposition. ri

. . . "Sec. 2. .The Board hereby created shell be am3it is hereby constituted abody politio and corporate. IX shall suoceed to the ownership of all property of, andall lease and rental contrasts entered into by, the Texas', National GuardAmory Board'that'was hreated by prior statutes ana all of the obligations, aontraatea or assumedby the last mentioned Boardwith respect to any,such property and contract~s shall be the obligations of the Boaia oreated by this Act. With this escepMod, no obligation of said former Board shall be binding upon the Board hereby created. It ,shall be'the duty of said Boara to have charge of the acquisition, constru+.on, rental, control, maintenance anddperation of all Texas National GuardArmorie$I, including stables,

rifle ranges, hangers andall other ~~~$Z~ andequipment necessary or useful in connection therewith, andsaid Board shall possess all powers necessary and convenient .?or the aocomplishment of such duty,

. . ." In the case of Webster, et al, vs. Texas and Paoiric Motor Company, et a$, 166 9. w. (2a) 75, Chief Justice Alexander, speaking for the SupremeCourt, stated as r0li0ws:Hon. John A. Hulen, - Page 4 Opinion No, V-286

YIt is awell established rule in this State, as well as in other States, that~where the Legislature has committed a matter to a board, bureau, or commission; or other administrative agenoy, suoh board, bureau, or oommission must act thereon as abody at a etatea meeting, or one properly called, and o? which all the membersof suoh board have notice, or of which they are given an opportunity to attend, Consent or acquieaoeuce or, or agreement by the individual membersMting separately, end not as a body, or by anumber of the membersless than the whole aoting collectively at anunscheduled meeting without notiae or opportunity of the other members to attend, is not sufficient.

. .” In an Opinion numberedO-5667, dated November 26, 1943, this Department stated as follows:

“In the ease of a Board the statutory power or authority is to be exeoutea bythe 

### Boardas a body, That is to say, at a meeting of the Boera duly assembled, end not by the individual andseparate action of the membersotherwise than as a boay

. . .

“mere, however, the Board has duly aotea as aboo, it may, by appropriate resolution, authorize the President, or any other officer of the college, to execute the instrument in the name, for andon behalf of the Board.” It will be seen from the foregoing that the Board must act as a body, and consent or acquiesence by the indivudual membersacting separately is not su??icient. However, if the Board has acted as abody in authorizing the payment of expense acoounts, payrolls, rentals, etc., then it may, by resolution, aeSign@te the Chairmanto exeoute the sameon behalf of the Board. Theconstruction placed upon the resolution under consideration by this department is that the Board does not contemplate approval as a body, but severally; therefore, suchresolution would not be in ooniormity with the established rule regulating the affairs of a Board, andyour question must therefore be answered in the negative.

.Hon. John A. Hulen, - Page 5 Opinion No. V-286

Amatter t?omdtted to a State Board **UW3t** be acted upon as abody at a stated meeting, andthe resolution of the National GuardArmory Board delegating authority to the Chairman or its Board to approve accounts, etc., by said Boardwould not be sufficient, If the State Board has duly acted as abody, it may, by appropriate resolution, authorize eny or its officers to act for andon its behalf as to specific items covered by such resolution. Very truly yours, ATTORNEY

GEIIT4TERAL

OFTEXAS

SW:wb:sh Burned.1Waldrep Assistant