A-bHxiY\- ,ia.;5r.lb.I. August4, 1965 

Honorable Robert S. Cslvert Opinion Ro. C-4yir 

Comptroller of Public Accounts 

Aushn, Texas Re: 

Dear Mr. Calvert: 

Whether the First 

Assistants and Chief 

Deputies In the various 

State offices end 

departments are entltled 

to reimbursement for 

their actual meals, 

lodging and incidental 

expenses while travellng on official business 

either ln or out of the 

State of Texas. 

You have requested a~ opinion 

on the question as hereinafter stated: 

from this department 

Whether the First Assistants and Chief Deputies 

In the various State offices and departments 'are. 

entitled to reimbursement for their actual meals, 

lodglng and Incidental expenses while traveling 

on official business either in or out of the 

State of Texas. 

In connection with this request, I quote from your 

letter the following: i 

"In this connection I invite your attention 

to subsection (a) of Section 17, Article V of 

House Bill 86, Acts 56th Legislature, Biennial 

Appropriation Bill from September 1, 1963 to 

August 31, 1965, both dates inclusive, which 

reads as follows: 

'Executive heads of State agencies, 

Including the Executive Director of the 

Legislative Council, shall be reimbursed for 

their actual meals,, lodging and incidental 

expenses when traveling on official business 

either in or lout of the State.' 

-2259- 
Hon. Robert S. Calvert', page 2 (C-477) 

"Also I want to call your attention to 

subsection (a) of Section 17, Article V of 

Rouse Bill 12, Acts 59th Legislature, Biennial 

Appropriation Bill from September 1, 1965 to 

August 31,'1967, which reads as follows: 

'Executive heads of State agencies, ~ 

including ~the Executive Director of the 

Legislative Council, shall be reimbursed for 

, their actual meals, lodging and incidental 

expenses when traveling on official business 

either in or out of the State.' 

"Further, I Invite your attention to Section 

2 of &he Travel Regulations Act of 1959, Codified 

as Article 6823a of Vernon's Civil Statutes, ,which 

provides: 

ll%e provl&ons of this Act shall apply to 

all officers, heads of state agencies, and 

state employees. The provisions of this Act 

shall not apply to judges and other judicial 

employees ~pald by the state, counties or other, 

political subdivielons pursuant to law. Heads 

of state agencies shall mean elected state 

officials, excluding members of the Legislature 

who shall receive travel reimbursement as provlded by the Constitution, appointed state 

officials> appointed state officials whose. ..' 

appointment Is subject to Senate confirmation, 

directors of ltiglslal$ve interim committees or 

boards, heads of state hospitals and special 

schools, and heads of state lnstltutlons of. 

higher education.' (Bmphasls added) 

"I have no difficulty In determining that 

elected State officials and appointed State 

officials who are confirmed by the Senate are 

entitled to reimbursement for their actual meals, 

lodging and~incidental expenses; however, i.n view 

of the fact that the Travel Regulations Act of 1959, 

as amended, also defines heads of State agencies 

to include 'appointed State officials,' I am desirous 

of securing your opinion as above stated on whether 

thls terminology should be construcd'as including 

the First Assistants and Chief Deputies in the 

various State Offices, Departments and Agencies. 

It is my understanding that these officials take 

the official oath of office, and ln most.cases, 

-2260- 

; : 
Ron. Robert S. Calvert, page 3 (C-477) 

they have complete authority to function in the 

absence.or inability of the particular office 

holder." 

Article 4340, Revised Civil Statutes of Texas,. 

provides in part as follows: 

"The office of Chief Clerk to the Secretary 

of State Is hereby abolished, and the office of 

Assistant Secretary of State Is hereby created. 

The Assistant Secretary of State shall be an 

attorne 

five (5 7 

-at-law, and he shall have had at least 

years actual practice in this State 

prior to his appointment and shall perform all 

the duties required by law to be performed 

by the Secretary of State ‘when the said Secretary 

of State Is absent or unable to act for any reason. 

. . . The said Assistant Secretary of State shall 

serve as such so long as the 

appointing Na is In office." 

Secretary of State 

Artlcle,u12, Revised Civil Statutes, of Texas, provides: 

"In case of the absence or Inability of the 

Attorney General to act, the first office assistant 

of the Attorney General shall discharge the duties 

which devolve by law upon the Attorney General. ” 

Article 4352, Revised Civil Statutes of Texas, 

provide 8 : 

"The Comptroller shall appoint a chief clerk, 

who shall take the official oath aad give bond in 

the sum of ten thoueand dollars payable in like 

nmnner as the bond of the Comptroller, conditioned 

for the faithful performance of his duties. ‘Said 

clerk shall perform the duties of the Comptroller 

when the Comptroller may be unavoidably absent 

or incapable, from sickness or other cause, to 

discharge said duties, : . .v 

The above Statutes are set out to point out a few . 

o,ieFs Statute8 creating the offices of Assistants and Chief 

. 

In the case of Pfeffer v. Whnke, 260 S.W. 1031 

(Tex.Com.App. 1924), In discu8sing Articles 4318 and 4319, 

-2261- 

i . . . 
Hon. Robert S. Calvert, page 4 (C-477) 

; 

Revised Civil Statutes of Texas, which Is now Article 4340, 

and Article 4343, which is now Article 4352 of the Revised 

Civil Statutes of Texas, the Court said: 

"It is observed that articles 4318 and 

4343, respectively, require that the secretary 

of state and the comptroller shall each appoint a chief clerk. It Is not optional with 

either to appoint or not appoint such chief 

clerk. The statute Is mandatory In providing 

for a chief clerk for each. The offices of 

chief clerk of each Is thus created by statute. 

It is likewise observed that the statutes 

provide that, ln the absence of the secretary 

of state, or his inability to act from any 

cause, the chief clerk may perform all the 

duties required by law of that officer, and 

that It shall be the duty of the chief clerk 

of the comptroller to discharge the duties 

of the comptroller when he may be unavoidably 

absent or Incapable from sickness, or other 

causes, to discharge said duties. 

"The service of the secretary of state 

and the comptroller on the board of education 1s the performance by each of a duty. 

attached by the statute to the office held 

by each. The duties are not personal. They f 

are duties attached to the offices. Any holder of the office of secretary of state or comptroller must serve as a member of the board of 

education as a part of the duties of those 

offices respectively. Since the statutes pro-~ 

vlde that the chief clerks pyry respectively 

perform the duties attaching to those offices, 

the chief clerks..may, ln the contingencies 

mentioned In the statutes, perform the particular duties attaching to the offices of 

secretary of state and comptroller by virtue 

of the statutes making them members of the 

board of education. In such cases the chief 

clerks do not perform those duties by delegation of authority from their chiefs. They , 

perform them by virtue of authority of the 

Legislature In the same way that their chiefs 

are authorized to perform them. The Ieglslature could have provided that, In the 

absence, etc., of the secretary of state and 

-2262- 
. . * - 

Hon. Robert S. Calvert, page 5 (C&7) 

'comptroller, the chief clerks of either or 

each should be members of the board of cd-' 

ucatlon. The Ieglelature has-+one the same 

thing ln a different way by prescribing that 

the chief clerks provided by statute shall 

and may, in the absence of the secretary 00 

state and the comptroller, perform the duties 

of those officers, among which are duties 

arising from their membership on the state 

board of education. Thus the chief clerk8 

are officers provided by statute, and 

authorized by statute, to perform the duties 

attaching to the officers of secretary of state 

and comptroller, making those officers members 

of the board of education. The ruii authority 

of the chief clerks thun to .act arises from 

the acts of the Leglslature~lnvestlng them 

with such authority *hen the contlngencles 

mentioned ln the statutes arise. There IS 

no delegation or authority to the~chlef 

clerks by the secretary of state and the 

comptroller. In truth and ln fact, the 

secretary of state and the comptroller are 

lmpotent to prevent the chief clerks from 

thus performlng the dutler o? those offices 

ln the contlngencles of the statutes author- ' 

lzing them to act. ~!Phe chief clerks have the 

sazsz authority to perform the duties of those 

offAces in those contingencies that the 

secretary of state and.coolptroller.have to 

perform them at all others times--the authority 

of the Legislature. The chler clerks are 

,I 

. . . ' (Emphasis added) 

The foregoing case authorSty makes It clear that 

where a statute authorizes the designation of someone to 

exercise the powers and carry out the functions of a stats 

office ln the absence or inability to perform of the person 

holding such office, the person so designated to act derives 

hls authority, not by delegation from the officer he holds 

under, but, directly from the Legislature, and la, therefore, 

a public officer of this State. 

-2263- 
Hon. Robert S. Calvert,, page 6 (C-477) 

It therefore follows that when an Individual Is 

designated as first assistant, chief deputy, or by whatever 

title, to 'a State office, pursuant to a statute whereby 

such person has the atatutoiy authority to act for such 

office, he Is an "appointed state official" as that term 

Is used ln the definition of "heads of state agencies" set 

forth ln Section 2 of Article 6823a of.Vernon's Civil 

Statutes. 

It Is therefore the opinion of this office that 

any first assistant, chief deputy, or by whatever title 

known, of the various State offices, departments and agencies, 

who are authorized by statute to act for such office, department or agency ln the absence of, illness or inability to 

act of,the head of 8UCh office, department or agency, is an 

appointed State official, and such appointed State official 

would-be entitled to reimbursement for their actual meals, 

lodging and incidental expenses while traveling on official 

business either ln or out of the State of Texas. 

First Assistants and Chief Deputles"ln the 

.,: :.: _; !':- 

various State offices and departments, who are 

authorized by statute to act for such office or 

department ln the absence of, Illness or inability 

to act of the'head of such office or department; 

is an appointed State official, and would be entitled 

to reimbursement for his actual meals, lodging and 

incidental expenses while traveling on official 

business, either in or out of the State of,Texas, 

Yours very truly, 

WAOCORRR CARR 

Attorney General 

BY 

J?lB:sj 

.‘., -2264- 
Ron. Robert S. ~Calvert, page 7 (Can) 

APFROVED: 

OPIRIOR COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Philllp,,Crawford 

Arthur Sandlin 

Roy B. Johnson 

APPROVRDFOR!lXRA!ITORRRYGRRRRAL 

BY: T. B. Wright 

, 

-2265-