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# GENERAL

February 16, 1962
Honorable William A. Harrison Opinion No. WW-1262 Commissioner of Insurance International Life Building Re: Whether the Liquidation Division Austin, Texas ofthe State Board of Insurance is subject to the Position Classification’Act of 1961, and related quesDear Commissioner Harrison: tion.

Your letter requests the opinion of this office onthe following questions:

“1. Is the Liquidation Division ofthe State Board

of Insurance subject to the Position Classification Act of 1961?

“2. Ifyour answer to Question No. 1is in the negative, Irequest your further opinion as towhether or not the Commissioner of Insurance is authorized under Article 21. 28, Section 12, Texas Insurance Code, to enter an order placing the Liquidation Division ofthe State Board of Insurance under the Position Classification Act of 1961, andwhether or not the issuance of such order would subject the permanent employees ofthe Liquidation Division to the Position Classification Plan as set out in the Position Classification Act of 1961. ” Section 2ofthe Position Classification Act of 1961 reads, inpart, as follows:

“Sec. 2. All regular, full-time salaried employments

within the departments and agencies ofthe State specified in Article III,
. . . ofthe bienniel Appropriations Act, shall conform with the Position Classification Plan hereinafter described and with the salary rates and provisions ofthe applicable Appropriations Act commencing with the effective date ofthis Act, with .- the exceptions and deferments hereafter provided inthis Section.

“Effective January 1, 1962, alI regular, full-time salaried employments in executive or administrative’agencies ofHon. William A. Harrison, page 2 (WW-1262)

the State, regardless ofwhether their funds are kept inside or outside the State Treasury, shall also conform with the Position Classification Plan hereinafter described andwith the salary rates and provisions of the General Appropriations Act with ,theexceptions hereinafter provided inthi,s Section.

“
. . .

“Specifically excepted from the Position, Classification Plan hereinafter described are . . . hourly employees, part-time, and,temporary employees; and such other positions in the State Government as have heretofore been or as may hereafter be excluded from such Position, Classification Plan

. . . by direction ofthe Legislature. ” (Emphasis supplied. ) That prwision of the Act excepting ”
. . .such other positioas inthe State Government as have heretofore been.
. .excluded.
. .by airection ofthe Legislature”, is evidence of legislative recognition ofthe existence, at the time ofthe Act’s passage, of departments ofthe State Government which had in the past utilized employment plans different from that embodied in the Act and the des,irability of allowing such departments to continue to so operate. Ifsuch a construction is not placed onthat part of the Act quoted above, the word.,“heretofore” inthe statute is rendered meaningless.

InOpinion No. WW-1095, this office held that the Position Classification Plan did not apply to the Finance Commission and the Banking and &rings and Loan Departments inview ofthe following language quoted fra the statutes applicable to those departments:

(1) Banking Department (Art. 342-l 12, V. C.S.)

,I

. . . Fees, penalties and revenues collected by the Banking Department from every source whatsoever shall be retained and held by said Department, and,no part **d** such fees, penalties and revenues shall ever be paid into the General Revenue Fund ofthis State. All expenses incurred by the Banking Department shall be paid only from such,fees, penalties and revenues, and no such expense shall ever be a charge against the funds ofthis State. The Finance Commission shall adopt, and~from time to time amend, budgets which shall direct the purposes, and prescribe the amounts, for which the fees, penalties and revenues ofthe Banking Department shall be expended;
. . .”Hon. William A. Harrison, page 3 (WW-1262)
(2) Savings and Loan Department ,(Art. 342-205, V. C.S. ,as amended)

“(b)
. . .The Deputy Sayings and Loan Commissioner, the Savings and Loan Examiners and all other officers and employees ofthe Savings and Loan Department shall receive such canpensation as is fixed~by the Finance Commission which shall be paid frcm funds ofthe Savings. and Loan Department.”

“(h)
. . .All expenses incurred by the,Savings and Loan Department shall be paid only from such fees, penalties, charges, and revenues, and no such expense shall ever be a charge against the funds ofthis State or the funds of the Banking Department. The Finance Commission shall adopt, and from time to time amend, budgets which shall direct the purposes, and prescribe the amounts, for which the fees, penalties , charges and revenues ofthe Savings and Loan Department shall bs expended;
. . . ” InOpinion No. WW-1222, we held that the Position Classification Plan did not apply to the Texas State Board of Plumbing Examiners under the following language ofSections 5and 7ofArticle 6243-101, V. C.S.:

“Sec. 5. The Board shall administer the provisions ofthis Act.
. . .The Board is hereby authorized and empowered~ to employ, promote and discharge such assistants and employees as itmay deem necessary to properly carry out the intent and purpose of this Act, and to fix and pay their compensation and salaries and to provide for their duties and the terms oftheir employment.
. . .” (Emphasis supplied. )

“Sec. 7. All expenses incurred under this Act shall be paid from the fees collected by the Board under this Act. No expense incurred under this Act shall ever be a charge against the funds ofthe State of Texas
. . .; butno fees collected hereunder shall ever be paid into the General Fund of this State. ” Article 21.28 of the Texas Insurance Code provides for the creation and operation ofthe Liquidation Division ofthenState Board of,ksurance, and inview ofthe similarity ofthe language ofSection 12(a) and (b) ofArticle 21. 28 quoted below and the language ofthe statutes relating to the Finance Commission and the Board of Plumbing Examiners, we are ofthe,opinion that the Liquidation Division ofthe State Board of Insurance is exempt fromHon. William A. Harrison, page 4 (WW-1262)

the operatianof the Position Classification Plan. Section 12of Article 21. 28 reads, inpart, as follows:

“Sec. 12. Liquidator, Assistants, Expense Accounts. -- (a) Liquidator, Bond. The liquidator herein named shall be appdnted by amajority ofthe Board of Insurance Commissioners, and shall be subject to removal by amajority of said Board, and before entering upon the duties of said office, shall file with the Board of Insurance Commissioners abond inthe sum of Ten Thousand Dollars,($lO~, 000), payable to the Board of Insurance Commissioners for the benefit of injured parties, and conditioned upon the faithful performance of‘his duties and the proper accounting for all moneys and properties received or administered by him.

‘l(b) Appcintments, Expenses. The Board shall have the power to appoint and fix the carnpensation ofthe liquidator and of such special deputy liquidators, counsel, clerks, or ayment of such assistants, as itmay deem necessary. The p compensation and all expenses of liquidation shall be made by the liquidator, out offunds or assets ofthe insurer on appro;al ofthe Board.
. . .” (Emphasis supplied. ) We are also of the opinion that your second question should be answered in the ne~gative for the reason that an order of the Commissioner placing the Liquidation Division employees under the Position Classification Act would, be tantamount toan abdication ofthose duties imposed upon the Commissioner by Section 12(b) ofArticle 21. 28to, “appoint and fix the compensation ofthe liquidator and of such special deputy liquidators, counsel, clerks, or assistants, as [he] may deem necessary. . . .‘I

Such an orde~r, purporting totransfer his statutory duties toanother administrator, would be violative ofthe general rule announced in Corpus Juris Secundum (Vol. 73, p. 381):

“In general administrative officers and.bodies cannot alienate, surrender, or abridge their powers and duties, or delegate authority and functions which under the law may be exercised only by them; and, although they may delegate merely ministerial functions, inthe absence of statute or organic act permitting it, they cannot delegate powers and functions which are discretionary or quasi-judicial in character, or which require the exercise ofjudgment.”Hon. William A. Harrison, page 5 (WW-1262)
Although we have foundsno,Texas cases directly in point, we believe the problem here presented is analogous to the situation involved in cases concerned with the delegation ofpowers, by Commissioner’s Courts and that our question is controlled by the reasoning of such cases. InGuerra V. Rodriguez, 239 S.W. 2d 915 (Civ. App. 1951). we find the following statement:

“In the absence of statutory authority, the powers

ofa Commis~sioners’ Court involving the exercise ofjudgment and discretion can not be delegated, and until delegated those powers reside with the court. The power to hire workers and tobuy and hire tools, and equipment are not mere ministerial functions which may be delegated. Otherwise the Legislature would have been under no necessity to authorize the delegation ofthe functions ofthe court to a road commissioner or a road superintendent. Those are powers that the Commissioners’ Court retains until they have been parceled out inaccord with some statute authorizing such a delegation ofpower. . . .”
Itis our opinion that the powers and duties conferred upon the Commiseioner by Section 12b ofArticle 21. 28may not be delegated, by him without statutory authorization.

SUMMARY

The Liquidation Division of the State Board of Insurance is not subject to the Position Classification Act of 1961. The Commissioner of Insurance is not authorized under Article 21.28 bfthe Texas Insurance Code to enter an order placing the Liquidation Division ofthe State Board of Insur-Hon. Wimam A. Harrison, page 6 (WW-1262)

ante under the Position Classification Act of 1961.
Yours very truly, WILL WILSON Attorney General of Texas

DDM/pe
APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Pat Bailey Elmer McVey J. Milton Ricfiardson Dudley D. g cCafla Assistant Akorney General

REVIEWEDFORTHEATTORNEYGENERAL BY: Houghton Brownlee, Jr.