E EY 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 of the 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 on the following 

questions: 

“1. Is the Liquidation Division of the State Board 

of Insurance subject to the Position Classification Act of 

1961? 

“2. If your answer to Question No. 1 is in the negative, I request your further opinion as to whether 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 of the State Board of Insurance under 

the Position Classification Act of 1961, and whether or not the 

issuance of such order would subject the permanent employees 

of the Liquidation Division to the Position Classification Plan 

as set out in the Position Classification Act of 1961. ” 

Section 2 of the Position Classification Act of 1961 reads, in part, 

as follows: 

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

within the departments and agencies of the State specified in 

Article III, . . . of the bienniel Appropriations Act, shall conform with the Position Classification Plan hereinafter described 

and with the salary rates and provisions of the applicable Appropriations Act commencing with the effective date of this Act, with 

.- 

the exceptions and deferments hereafter provided in this Section. 

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

the State, regardless of whether their funds are kept inside 

or outside the State Treasury, shall also conform with the 

Position Classification Plan hereinafter described and with 

the salary rates and provisions of the General Appropriations 

Act with ,the exceptions 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 of the Legislature. ” (Emphasis supplied. ) 

That prwision of the Act excepting ” . . . such other positioas in the State 

Government as have heretofore been. . . excluded. . . by airection of the 

Legislature”, is evidence of legislative recognition of the existence, at the 

time of the Act’s passage, of departments of the 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. If such a construction is not placed on that part of the Act quoted 

above, the word., “heretofore” in the statute is rendered meaningless. 

In Opinion 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 in view of the 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 of this 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 of this 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 of the 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 of the Savings and Loan Department shall receive 

such canpensation as is fixed~ by the Finance Commission which 

shall be paid frcm funds of the 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 of this 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 of the Savings and Loan Department shall bs expended; . . . ” 

In Opinion 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 of Sections 5 and 7 of Article 6243-101, V. C. S. : 

“Sec. 5. The Board shall administer the provisions 

of this Act. . . . The Board is hereby authorized and empowered~ to employ, promote and discharge such assistants 

and employees as it may 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 of their 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 of the State of Texas . . . ; but no 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 of the Liquidation Division of then State Board of ,ksurance, and 

in view of the similarity of the language of Section 12(a) and (b) of Article 

21. 28 quoted below and the language of the statutes relating to the Finance 

Commission and the Board of Plumbing Examiners, we are of the, opinion 

that the Liquidation Division of the State Board of Insurance is exempt from 
Hon. William A. Harrison, page 4 (WW-1262) 

the operatianof the Position Classification Plan. Section 12 of Article 

21. 28 reads, in part, as follows: 

“Sec. 12. Liquidator, Assistants, Expense Accounts. -- 

(a) Liquidator, Bond. The liquidator herein named shall be 

appdnted by a majority of the Board of Insurance Commissioners, and shall be subject to removal by a majority of said 

Board, and before entering upon the duties of said office, shall 

file with the Board of Insurance Commissioners a bond in the 

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 of the liquidator 

and of such special deputy liquidators, counsel, clerks, or 

assistants, as it may deem necessary. The p ayment of such 

compensation and all expenses of liquidation shall be made by 

the liquidator, out of funds or assets of the insurer on appro;al 

of the 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 to an abdication of those duties imposed upon the Commissioner 

by Section 12(b) of Article 21. 28 to, “appoint and fix the compensation of the 

liquidator and of such special deputy liquidators, counsel, clerks, or assistants, as [he] may deem necessary. . . .‘I 

Such an orde~r, purporting to transfer his statutory duties to another 

administrator, would be violative of the 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, in the 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 of judgment.” 
Hon. William A. Harrison, page 5 (WW-1262) 

Although we have founds no, Texas cases directly in point, we believe the 

problem here presented is analogous to the situation involved in cases concerned with the delegation of powers, by Commissioner’s Courts and that 

our question is controlled by the reasoning of such cases. In Guerra V. 

Rodriguez, 239 S. W. 2d 915 (Civ. App. 1951). we find the following 

statement: 

“In the absence of statutory authority, the powers 

of a Commis~sioners’ Court involving the exercise of judgment and discretion can not be delegated, and until delegated 

those powers reside with the court. The power to hire workers and to buy 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 of the functions of the court to a road commissioner or a road superintendent. Those are powers that the 

Commissioners’ Court retains until they have been parceled 

out in accord with some statute authorizing such a delegation 

of power. . . . ” 

It is our opinion that the powers and duties conferred upon the Commiseioner by Section 12b of Article 21. 28 may 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 bf the Texas Insurance Code to enter an order 

placing the Liquidation Division of the 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.