OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

May 3, 1939 

Honorable Tom L. Beaucheap 

Seorettrry 0r State 

kubtln, Texas 

Dear Sir: 

the Searetcry 

berore the 

the Aaalstant Soorstary of 

'\ 

*(4).--h at tlmos the Aaalstant Soorvttrry Of 

State should algn osrtifloatss and other dooumanta rt8 A,sslstant Secretary of Stat8 and at 

other tla.8 am Aotlng Secretary of State, than 

when should he sign as Aotlnq awl when aa 

Assistant .5.oorotory of State'?" 
Honorclble Tom L. tieauohamp, yl:~y 3, 1 e.79, l'ug1~ 2 

It will bo observed that the ertlcla of the statute 

above referred to provides that the i+snlstcint jeoretory of 

State "shall perform all the duties required by lnu to be 

performed by the Seorotflry of Stuts rhsn the said Seoratary 

of Stats 1s absent or unable to sot for any reason. Suoh 

Asslstsnt shall perform ruch other duties ar, shall be rdqulrrd of him by the :Yeoratary of Stats....w 

By virtue 0r the prorlalons 0r the stutute, the authority of the Assistant Seoratarp of State to sot at all depends upon the happening or oertain events xesorlbsd by the 

Eitatute. 

By th. seoond oontlngenoy presorlbed by the statute, 

the Aaelstant Seorstary of State le authorized to and rsqulrsd 

to perform such duties ae the Seoretory of State shall delegate 

to him for performanoe. Under thle eeotion of the statute, 

then, the authority of the Assistant Sooretary of State to perform a partloular duty depende upon whethsr ths Soorotary of 

State has lnatruoted hl!+ to perform suah duty. The full authorlty of the Aealstant Seorstary of State thus to aot arises 

rrom the et::tuts lnveatlng him with suoh authority when the 

oontlngsnoy mentioned in the statute la met - that is, whan 

the authority to perform the partloul,,r aot has been delegated 

by the Secretary of State. There 1s no unlawrul dalagatlon ot 

authority by the Seoretary of State, ror the Seoretary of State 

and the Asalstant Seoretary of State are both oraaturem of the 

law. The duty and the authority to aot is an lnoldent cl the 

orrioe, and not 8 personal one, and there 1s nothing to ?rohlblt 

the lsglslaturs from authorlzlog, am it haa in this aot, the 

p0rronnanoa of oertaln a tetim l ttaohed to the 0rri0e 0r Sooretary of Stats by the Aeslstant Ssoretary of State when the 

Secretary of State shall see fit to roqulrs the perfonaanoe of 

suoh duty by the.Aaalstunt Seoretary of Stats. Prdfer Y. 

Mahnke et al, (Commission of Appeals, Seotlon 8, opinion adopted 

by the Ziuprems Court ) 260 S. U. 1031. 

On the other hand, hy virtue of the provisions or the 

statute, eren though there may be no delegetlon of authorltf by 

the Seoretary of State, yet in the event the Sooretary of State 

1s absent or unable to aot for any reason, the Assietant Seorstary of State 1s authorized by the statutes to perrorm all ths - 
Honorable Tom L. Beauchamp, May 3, 19?9, Page 3 

dutlse required by law to be performed by the Seoretnry of State. 

If the oontlngenoy mentioned ln this partloular aeotlon or the 

aot 000urs, the authority of the Asolstant Seoretary or state 

to aot la oomplete. 

The purpoee or the atatute olted above 1s obviously 

to expedite and faoilitate the perfotmanoe of the dutlea lmposed by law upon the offloe of Seoretary or State, The aot 

should be liberally oonstrued so aa to give l fieot to that purpose. With this purpose in mind, it is the oplnlon of this department thAt it 1s not neoessary that the Seoretary of State 

be absent rroa ths olty before the Asslcttant Seoretsry of State 

would be authorized to aot, but, on the oontrary, that his abson08 tram the orrloe or the Secretary or State at the time the 

oooaslon ror acting arlsee 1s aufflolent to authorize the Anslstant Seoretary of State to aot in hls stead. Llkewlee, it 

is the opinion of this department that the phrase “unable to 

aot ror any reason” ohould be liberally oonstrued, and thct the 

inability of the Seoretary or State to aoti a8 therein oontem: 

plated, may oonsist ot or be brought about by the volume of 

other work oommanding ths attention ot the Yeoretary of State 

and preventing him from aotlng in respeot to oertaln duties 

or his orrloe, as well as by phyaloal or mental inability to 

act. 

You are further advised, that, slnoe the aots of 

pub110 otfloers are presumad to have been done in the proper 

exerolse 0r legltlaate powaro, unless the oontrary be shown, the 

raot that the Aaalrtant Secretary of St::te aots in a partloular 

matter glrrs rise to the preeumptlon that the oondltlons presorlbed br the atatute authorizing him to aot have arisen. 

Proffer f. Mahnke, olted aboro. 

Your’flrst question above quoted la thsretore answered 

in the negative. 

Your seoond queotlon 1s answered by the discussion 

above. 

In anawar to your third question, you are: advised that 

It 16 the opinion of this deprrtnent that the Asuletant Seorstary 

0r State, when authorized by the happening of any or the oondltlona above mentioned to sign oertltlcatee, should sl~n them as 
!!onorable Ton L. Baauohamp, May 3, 1939, Page 4 

Assletant Seoretary of State. There la DO prorlolon in the statute 

lor suoh an olftoer aa "Aotlng Seoretory of State." If the algnature la aa haalstant Seoratary of State, the prarumptlon above 

rafarred to would attaoh; but it la doubtful that auoh a presumptlon would attaoh td the aot of an aotlng Saoretary of State where 

no suoh orrloe is prorlded ror by law. 

In anmer to your fourth question, you are advised that 

In our opinion whenever ths Asel&xmt Beoratnry of Stnte may affix his signature to any dooument by vlrtua of the happening of 

the oondltlom above rnantloned, he ahould sign 44 Assistant 

Ssoretary of Stats, and in no lmtanoe should ho elgn an Aotlng 

Saoratary or Stats. 

Xe trust that this opinion will annwer all of the inqulrias to your entire satl8faotlon. 

ATTORNEY SfiNEEW. ;F TEXAS 

Rlohard VI. Falrohlld 

Anslatant 

RW:FL 

APPROVED: 

AT'I'ORNEY w----- GE RAL OF TEXAS