August 21, 1953

Hon. H. A. Beckwith OpinionNO. s-86 Chairman Board of Water Engineers Re: Legality of the Assistant 302 West 15th Street Austin, Texas Secretaryof the Board of Water Engineers to certify orders and other documents of the Board and to
assume responsibilityas custodJ.an

of the files and Dear Mr. Beckwith: records of such Board.

You have requested an opinion of this office
on the following question:

"ThisBoard desires for you to give us your opinion as to the legality of the Assistant Secretary of the Board certifying to orders, decisionsof record, papers,maps or other documents. Also, can the responsibility as custodian of the files and records be delegated to the Assistant Secretary of the Board?"

Subdivisions 6, 7, and 16 of Article 7477, Vernon's Civil Statutes, as amended by Chapter 357, Acts of the 53rd Legislature, 1953, p. 874, provide:

"(6)The Board may appoint such other employeesas may be deemednecessary for the efficientperformanceof the duties authorized and required of it by law.
"(7)
. D *The Secretary shall be custodian of all files and records of the Board.

. . . "(16)Upon the apolication of any person and upon payment of the fees prescribed therefor in the rules and regulations of the Board, the Board shall furnish certified copiesHon. H. A. Beckwith, page 2 (S-86)

of any of its proceedings or other official acts of record, or of any paper,map or document filed in the office of the Board, in connectionnith the appropriation~of water, determinationofwater rights, or administration of water rights. Such certified copies under the hand of the Chairman or the Secretary, %nd the seal of the Board shall be admissible!

in evidence in any court or administrativeproceeding, In the same ~manner andwith like effect as the originalwould be."

Article 7488, V.C.S., provides:

'TheBoard shall have power to make all needful rules for its government and proceedings; and shall have a seal, the form of which it shall prescribe."

The 53rd Legislature in the GeneralAppropriation Act provides for the employmentof a Business Manager and Secretary of the Board and an Assistant Secretary of the Board. Thewordy"assistant"is 'universally defined as onewho aids,. helps, or assists,while the word "deputy"is defined as a person appointed to act for another;,to substitute; to delegate; an agent; and in,the absence of any statutoryprovisions the assistant
never acts officially for the principal. Niall v. State, 129 S.W. 630 (Tex.Crim.1910). But the fact that a deautv is described in a transactionas an assistant or vice versawill not invalidatehis acta. 'Piersonv. State, 180 S.W. 1080 (Tex.Crim.1915).

In view of the foregoing, the answer to your question 1~s

dependentupon the scope of the employment of theAssistant Secretaryby the,Boardof Water Engineers. If the Assistant Secretary is employed only for the purpose of aiding or assisting the Secretary of the Board, the Assistant Secretarywould not be authorized to perform the duties of the Secretary imposedby law. However, if the employment is for the statedpurpose of authorizing the Assistant to act for the Secretary of the Board and perform the duties of the Secretaryof the Board in the absence of the Secretary,then such assistantwould be in fact a "deputy"andwould be authorized to certify. . .

Hon. H. A. Beckwith, page 3 (S-86)

orders, decisionsof record, papers,maps and other documents,and any other duty imposed on the Secretary, includingthe responsibilityof custodian of the files and records. In otherwords, the Board of Water Engineershas the authority to prescribe the duties of the Assistant Secretary,and such dutiesmay include those outlined in your request. We are supported in this conclusionby the provisions of Section 1 of Article 3731a,Vernon's Civil Statutes,which provides:

"Anywritten statement,certificate, record, return or report made by an officer of this state or of any governmental subdivision thereof, or by his deputy or employee, in the performance of the functions of his office shall be, so far as relevant, admitted in the courts of this state as evidence of thematter stated thereinfi

s.ubjectto the provisions in Section 3.

SUMMARY

The Board of Water Engineershas authorityto prescribe the ci-uties of the Assistant Secretary of the Board, and such duties may includecertifying to orders,decsTslorn3 of record, papers,maps and othe~r documents,and in the absence-

of the Sec~retary

to'authorize-the Assistant Secretary to act as custodian of the files and records.

Yours very truly,

APPKOVED:

J. C. Davis, Jr. County Affairs Division JORNBEN SREPPERD Attorney General

Willis E. Gresham Reviewer

Robert S. Trotti First Assistant Assistant

JR:am