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 

accordance with the resolution passed 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 Executive Director of the 

Board hired by resolution of the Board on January 28, 1958. 

This resolution reads as follows: 

"Resolved, that in accordance with 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 the provisions of the Texas Optometry Act. It shall be 

the duty of Mr. Moss to assist the board, the 

members of the board, the Attorney General and 

the county and district attorneys of the State 

of Texas wherever necessary to carry out the 

provisions of the Optometry Act. Mr. Mess shall 

bear the title of Executive Director and shall 

receive for his services the sum of $500 per 

month, effective January 1, 1958. It is further 

provided that Mr. MOSS'S services and the Board's 

obligationto pay him therefor may be terminated 

at any time by the Board or by Mr. Moss." 

Article 4556 of Vernon's Annotated Texas Civil Statutes, reads in part as follows: 

11 

. . . The Board shall have 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 the practice 

of optometry and the enforcement of this Act. 0 a s 
Dr. Ira E. Woods, Page 2 (WW-400). 

The Board shall have the newer to emnlov the services 

of stenographers, inspectors, and other"necessary 

assistants in carrying out the provisions of this 

Act. . . ." (Emphasis ours) 

The problem resolves itself into a question of the 

interpretation of the term "necessary assistants" as used in 

Article 4556 and whether Mr. Moss falls within the term as 

therein used. 

The rule making power of the Optometry Board as well 

as the power to employ assistants is prefaced by the word 

"necessary". This word does not have a fixed and definite 

meaning but is~ a word of flexibility, expressing degrees relative to the situation and 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 language which grants rule making authority 

"lends support to a construction favoring a broad and liberal 

delegation of authority". 

The most widelv accented definition of the word 

"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, the power 

granted to the Optometry Board to make "necessary" rules and 

Regulations is construed to be a broad power, it-is our opinion that the power to hire "necessary assistants" is a broad 

discretionary power to hire persons to aid, help, or assist the 

Board in carrying out the purposes of the Optometry Act. 

The provisions of the Optometry Act provide for the 

regulation of the practice of optometry by the Optometry Board. 

In his capacity as Executive Director Mr. Moss performs the 

following duties: 

"1. He assists the Attorney General 

and county and district attorneys of the State 

in the preparation, prosecution and trial of 

law suits involving violations of the Optometry 

Act. 

"2. At hearings before the board 

under Article 4563, Revised Civil Statutes of 

Texas, Mr. Moss presents evidence and assists 

the board in conducting the hearing. 
Dr. Ira E. Woods, Page 3 (WW-400). 

“3 . He is in charge of investigations 

and the assembling of evidence in connection with 

violations of the Texas Optometry Act." 

It is, therefore, our opinion that the Texas State 

Board of Examiners in Optometry was authorized to employ and 

pay the salary of the Executive Director of the Board, as a 

"necessary assistant", in accordance with 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 

Optometry Act is a "necessary assistant" 

within the meaning of Article 4556, and 

::his salary may be paid from the funds of 

the Board. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

By f/J [:: 

W. 0. Shultz 

Assistant 

WOS:pf 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

Richard B. Stone 

Morgan Nesbitt 

Wallace Finfrock 

REVIEWED FOR THE ATTORNEY GENERAL 

By: W. V. Geppert.