Dr. Ira E. Woods, Opinion No. WW-400.

President,Texas State Board of Examiners in Optometry, Re: Authority of the Texas 307 Bolm Building, State Board of Examiners Austin, Texas in Optometry to pay the salary of Executive Director of the Board in accordancewith the resolutionpassed by the Board Dear Dr. Woods: on January 28, 1958.

You have requested an opinion of this office concerning the authority of the Texas State Board of Examiners in Optometry to pay the salary of an ExecutiveDirector of the Board hired by resolution of the Board on January 28, 1958. This resolution reads as follows:

"Resolved,that in accordancewith the provisions of Article 4556 of the Revised Civil Statutes of Texas, the board does hereby employ the services of Mr. Joe S. Moss of Houston, Texas, as a necessary assistant in carrying out theprovisions of the Texas OptometryAct. It shallbe the duty of Mr. Moss to assist theboard, the members of theboard, the AttorneyGeneral and the county and district attorneys of the State of Texaswherever necessary to carry out the provisions of the OptometryAct. Mr. Mess shall bear the title of ExecutiveDirector and shall receive for his services the sum of $500per month, effective January 1, 1958. It is further provided that Mr. MOSS'S servicesand the Board's obligationto pay him thereformay be terminated at any timeby the Board or by Mr. Moss." Article 4556 ofVernon's AnnotatedTexas Civil Statutes, reads in part as follows:

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. . . The Board shallhave the power to make such rules and regulations not inconsistent with this law as may be necessary for the performance of its duties, the regulation of thepractice of optometry and the enforcementof this Act. 0 a sDr. Ira E. Woods, Page 2 (WW-400).

The Board shallhave the newer to emnlov the services of stenographers,inspectors, and other"necessary assistants in carrying out the provisions of this Act.
. . ." (Emphasisours) The problem resolves itself into a question of the interpretation of the term "necessaryassistants" as used in Article 4556 andwhether Mr. Moss falls within the term as thereinused.

The rulemaking power of the OptometryBoard as well as thepower to employ assistants is prefaced by theword "necessary". This word does not have a fixed and definite meaning but is~a word of flexibility, expressingdegrees relative to the situationand context in which it is used. Scott v. Walden, 140 Tex. 31, 165 S.W. 2d 449 (1942).

In the case of Kee v. Baber, 303 S.W. 2d 376 (Tex. Sup., 1957), the rule making power granted to the Optometry Board by Article 4556 was before the court. It was there stated at page 380 that the languagewhich grants rule making authority "lends support to a constructionfavoring a broad and liberal delegation of authority".

The most widelv accented definition of theword "assistant"is stated to"be one who aids, helps, or assists. Nail1 v. State, 59 Tex. Crim. 484, 485, 129 S.W. 630, 631 (1910). In view of the fact that in Kee v. Baber, supra, thepower granted to the OptometryBoard to make "necessary"rules and Regulations is construed to be a broad power, it-is our opinion that thepower to hire "necessaryassistants"is a broad discretionarypower to hire persons to aid, help, or assist the Board in carrying out the purposes of the OptometryAct.

The provisions of the Optometry Act provide for the regulation of the practice of optometryby the OptometryBoard. In his capacity as Executive Director Mr. Moss performs the following duties:

"1. He assists the AttorneyGeneral and county and district attorneys of the State in the preparation,prosecution and trial of law suits involvingviolations of the Optometry Act. "2. At hearingsbefore the board under Article 4563, Revised Civil Statutes of Texas, Mr. Moss presents evidence and assists theboard in conducting thehearing.Dr. Ira E. Woods, Page 3 (WW-400).

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. He is in charge of investigations and the assemblingof evidence in connectionwith violations of the Texas OptometryAct."
It is, therefore,our opinion that the Texas State Board of Examiners in Optometrywas authorized to employ and pay the salary of the ExecutiveDirector of the Board, as a "necessaryassistant", in accordancewith the resolution passed by the Board on January 28, 1958.
SUMMARY
An Executive Director hired by resolution of the Texas State Board of Examiners in Optometry to assist the Board, Attorney General and county and district attorneys in carrying out the provisions of the OptometryAct is a "necessaryassistant" within the meaning of Article 4556, and ::his salarymay be paid from the funds of the Board. Very trulyyours, WILL WILSON AttorneyGeneral of Texas 

# Byf/J [::

W. 0. Shultz Assistant WOS:pf APPROVED: OPINION COMMITTEE
Geo. P. Blackburn, Chairman Richard B. Stone Morgan Nesbitt Wallace Finfrock
REVIEWEDFOR THE ATTORNEY GENERAL By: W. V. Geppert.