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

HonorableRobert S. Cslvert Opinion Ro. C-4yir Comptrollerof Public Accounts Aushn, Texas Re:

Dear Mr. Calvert: Whether the First Assistantsand Chief Deputies In the various State offices end departmentsare entltled to reimbursementfor their actual meals, lodgingand incidental expenses while travellng on officialbusiness either ln or out of the State of Texas.
You have requesteda~ opinion on the question as hereinafterstated: from this department

Whether the First Assistantsand Chief Deputies In the various State offices and departments'are. entitled to reimbursementfor their actual meals, lodglng and Incidentalexpenseswhile traveling on official business either in or out of the State of Texas.
In connectionwith this request, I quote from your letter the following: i

"In this connection I inviteyour 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 ExecutiveDirector of the LegislativeCouncil, shall be reimbursed for their actual meals,, lodgingand incidental expenseswhen travelingon officialbusiness either in or loutof 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

ExecutiveDirectorof the LegislativeCouncil, shall be reimbursedfor

, their actual meals, lodgingand incidental expenseswhen travelingon officialbusiness 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%eprovl&ons of this Act shall apply to all officers,heads of state agencies,and state employees. The provisionsof 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,excludingmembers of the Legislature who shall receive travel reimbursement as provlded by the Constitution, appointed state officials>appointed state officialswhose. ..' appointmentIs subject to Senate confirmation, directorsof ltiglslal$ve interim committeesor boards, heads of state hospitalsand special schools,and heads of state lnstltutlons of. higher education.' (Bmphasls added)
"I have no difficultyIn determiningthat elected State officialsand appointedState officialswho are confirmedby the Senate are entitled to reimbursement for their actual meals, lodgingand~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 terminologyshould be construcd'asincluding the First Assistantsand Chief Deputies in the various State Offices, Departmentsand Agencies. It is my understandingthat 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 inabilityof the particularoffice 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 Secretaryof 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 appointmentand shall perform all the duties requiredby law to be performed by the Secretary of State ‘whenthe said Secretary of State Is absent or unable to act for any reason.

. . . The said Assistant Secretaryof State shall serve as such so **long** as the appointingNa is In office." Secretaryof State
Artlcle,u12, Revised Civil Statutes, of Texas, provides:
"In case of the absence or Inabilityof 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 Comptrollershall appoint a chief **clerk,** who shall take the official oath aad give bond in the sum of ten thoueand dollarspayable in like nmnner as the bond of the Comptroller, conditioned for the faithfulperformanceof 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 discu8singArticles 4318 and 4319,

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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 comptrollershall each appoint a chief clerk. It Is not optionalwith 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 createdby statute. It is likewiseobserved 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 requiredby law of that officer, and that It shall be the duty of the chief clerk of the comptrollerto 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 secretaryof state and the comptrolleron the board of education 1s the performanceby each of a duty. attachedby 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 secretaryof state or comptroller must serve as a member of the board of educationas a part of the duties of those offices respectively. Since the statutespro-~ 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 secretaryof state and comptroller by virtue of the statutesmaking 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 authorityof the LegislatureIn the same way that their chiefs are authorized to perform them. The Ieglslature could have provided that, In the absence, etc., of the secretaryof 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 differentway by prescribingthat the chief clerks providedby statute shall and may, in the absence of the secretary00 state and the comptroller, perform the duties of those officers, among which are duties arising from their membershipon the state board of education. Thus the chief clerk8 are officersprovided by statute,and authorizedby statute, to perform the duties attaching to the officers of secretaryof state and comptroller,

making those officersmembers 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 statutesarise. There IS no delegationor authority to the~chlef clerks **by** the secretaryof state and the comptroller. In truth and ln fact, the secretaryof state and the comptrollerare lmpotent to prevent the chief clerks from thus performlng the dutler o? those offices ln the contlngencles of the statutesauthor- ' lzing them to act. ~!Phe chief clerks have the sazsz authority to perform the duties of those offAces in those contingencies that the secretaryof state and.coolptroller.have to perform them at all others times--theauthority of the Legislature. The chler clerks are

,I

. . . ' (Emphasis**added) The**  foregoing case **authorSty makes**  It clear that where a statute authorizes the designationof someone to exercise the powers and carry out the functionsof 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 IndividualIs designatedas first assistant,chief deputy, or by whatever title, to 'aState office, pursuant to a statutewhereby such person has the atatutoiyauthority to act for such office, he Is an "appointedstate official"as that term Is used ln the definitionof "heads of state agencies" set forth ln Section 2 of Article 6823a of.Vernon'sCivil 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 authorizedby statute to act for such office, department or agency ln the absence of, illness or inability to act of,the head of 8UCh office, departmentor agency, is an appointedState official,and such appointedState official would-be entitled to reimbursementfor their actual meals, lodging and incidentalexpenseswhile travelingon official business either ln or out of the State of Texas.

First Assistantsand Chief Deputles"lnthe .,: :. : _; !':- various State offices and departments, who are authorizedby 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 reimbursementfor his actual meals, lodging and incidentalexpenseswhile travelingon 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

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