THE ORNEY GENERAL OF TEXAS

The State Board of Water Engineers Opin-i,on No. WW-314 Austin, Texas Re: Whether or not the ,Jttorney

Generalmust approve a person filing for the positions of examiner and assistant examiner for the Board of Water 3~>@n~~ers. Gentlemen:

In reply to your letter of August 15, 195'7, in wlhich YOU ask whether the AttorneyGeneral is required to approvsz applicants for the positions of examiner and assistant exam'~ner

Board of Water;

Engineers,we tender the follow:j.n~g for th,eState opinion: The slons (6)and fo:.:i.ows

: answe'r

to your qu,estlon

is to be found in subdivi- (11) of Arkl~~,le c;~+77, V.C.S., which we quota as
"(6)The Board may appoint such other employees as may be deemed necessary for tlheeff'io.cnt nerforman~.e

of the duties authorized and required of it t.ylaw. "(11.) The ‘ttor:r:rJ

General shall :TPthe leg.al advisor OT the 'TJ

boarda:Xi3hall represen.t Y! t Ianli+igatlon to whici:

Jt- m::y be a !;)a!,%y;

provided, that in addition, the Chai~r;,;lan, su',ject

to approval of the Board and written consent of tha Attorney General of the State,may employ other iegal counsel regularlY> or may engage their services temporarily. Suits to enforce any provisions of this chaptermay be prosecuted :i~n

,theco:irt:;

c;.f the State by theAttorney General." The languageabove quoted req!l1.res the Attorney General's approval of all legal counsel employedby the Board, whether (employed

regularly or temporarily. The position of legal counsel,however, Ls distinct and separate from the position of examiner or assistant examiner.

In administrativepracti~ce generally, an examiner 1s primarily a hearing officer iho conductshearings for the agencyState Board of Water Engineers,page 2 (WW-314)

and performs other incidentalduties as requiredby the agency or by statute. See Davis, Administrative Law, Sets. 91 et seq. The status.oowers and duties of an examiner depend upon the terms of the-statuteproviding for his appointment and the rules and regulationsadoptedby the administrativeagency which he serves. 73 C.J.S., PublicAdministrativeBodies & Procedure, Section 17.

Subdivision (11)of Rnl;icle 7477places the duty and responsibilityfor legal advice and representationupon the Attorney General and requireshis approval of all persons cmployed by theBoard in the capacity of legal counsel.whether suchpersons~are employed regularly or temporarily. This does not mean, however, that the approval of the Attorney General would be required for a position other than that of legal counsel.

In our opinion, subdivision (6) of Article 7477empowers the Board to employ an examiner or ?ssistant examiner without the approval of the Attorney General.

SUMMARY The Attorney General is not required to approve a person filing for tile positions of examiner or assistant examiner for the State Board of Wa.ter Engineers. The Board may not, however, employ legal counsel, regularly or temporarily,without the approval of the 4ttorney General.

HB:PC APPROVED: OPINION COMMITTEE: H. Grady Chandler, Chairman J. C. Davis James N. Ludlum RI!XIEWED

FOR THE ATTORNEY QENERAL BY: Geo. P. Blackburn Very truly yours, WILL WILSON Attorney General of Texas By++ /2wwfk 3, HoughtonBrownlee, Jr. Assistant