JIM MATTOX 

Attorney General 

The Attorney General of Texas 

April 25, 1984 

Supreme Court Building 

P. 0. Box 12548 

Austin, TX. 78711- 2548 

612/475-2501 

Telex 910/874-1367 

Telecopier 5121475.0266 

714 Jackson, Suite 700 

Dallas, TX. 75202-4506 

2141742.8944 

Honorable Lloyd Criss 

Chairman 

Committee on Labor and 

Employment Relations 

Texas House of Representatives 

P. 0. Box 2910 

Austin, Texas 78769 

Dear Representative Criss: 

Opinion No. JM-149 

Re: Authority of the Administrator of the Texas Employment 

Commission in regard to deeds, 

contracts, expenditures, and 

other functions 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905.2793 

915i533.3464 

,-TX Texas, Suite 700 

.louston, TX. 77002-3111 

713/223-5886 

606 Broadway, Suite 312 

Lubbock, TX. 79401.3479 

6W747.5236 

4303 N. Tenth, Suite B 

McAllen, TX. 78501-1695 

5121682.4547 

200 Ma,” Plaza. suite 400 

San Antonio, TX. 78205-2797 

512/225-4191 

An Equal Opportunity/ 

Affirmative Action Em~love~ 

In accordance with the Sunset Act, the Sixty-eighth Legislature 

enacted legislation for the continuance of the Texas Employment 

Commission with modifications designed to improve the agency's 

operation. You have asked our opinion concerning the responsibilities 

of the members of the Texas Employment Commission and those of the 

agency administrator under the recently amended act. You also have 

asked three specific questions occasioned by changes in the act which 

relate to the organizational structure and administration of the 

agency. We believe the act as amended authorizes a person appointed 

to the merit system position of agency administrator to perform the 

routine, day-to-day administrative functions and authorizes the 

commission to administer the act and to take the action it deems 

necessary or suitable to that end. We believe the commission retains 

the final responsibility for the administration of the Texas 

Unemployment Compensation Act. 

In the case of most state agencies, the board or commission 

appointed by the governor employs an administrator or director who, in 

turn, employs the personnel necessary for the operation of the agency. 

Prior to the Sixty-eighth Legislature, the administrative structure of 

the Texas Employment Commission differed from the usual structure. 

The chairman of the Texas Employment Commission was statutorily 

designated as executive director of the agency, but the commission, 

acting as a whole, was authorized to employ the persons it deemed 

necessary or suitable to administer the agency's duties. See V.T.C.S. 

art. 5221b-9; Attorney General Opinion H-979 (1977). How~r, recent 

chairmen have not acted as administrator of the agency. Instead, the 

commission had chosen to employ an administrator who had no powers or 

duties designated by statute. The connnission had the authority to 

determine the administrative structure of the agency and continued to 

select and appoint persons to fill several top administrative 

p. 643 
Honorable Lloyd Criss - Page 2 (JM-149) 

positions in the agency. See Texas Sunset Advisory Commission Final 

Report on Business and Professional Agencies, Vol. 1 (1983). 

The Sixty-eighth Legislature amended articles 5221b-g(d) and 

5221b-9, V.T.C.S., to delete the chairman's designation as executive 

director and the commission's authority to employ the personnel 

necessary to administer the agency. Article 5221b-9, as amended, 

added a directive to the commission to appoint a" agency administrator 

on the basis of merit to administer the day-to-day operations of the 

Texas Employment Commissio", including the appointment and 

determination of the duties of all persons necessary to perform the 

commission's duties and the development of a system of annual 

performance evaluations on which all merit pay for the commission's 

employees will be based. 

Article 5221b-9 provides, in pertinent part: 

(a) Duties and Powers of Commission: It shall 

be the duty of the Commission to administer this 

Act; and it shall have power and authority to 

adopt, amend, or rescind such rules and 

regulations, to make such expenditures, require 

such reports, make such investigations, and take 

such other action as it deems necessary or 

suitable to that end. Such rules and regulations 

shall be effective upon publication in the manner, 

not inconsistent with the provisions of this Act, 

which the CO~iSSiO" shall prescribe. The 

Commission shall determine its own organization 

and methods of procedure in accordance with the 

provisions of this Act. and shall have a" official 

seal which shall be judicially noticed. The 

Commission shall appoint a" Agency Administra~ 

on the basis of merit to administer the day-to-day 

operations of the Texas Employment Commission. 

The commission may prescribe any specific 

qualifications for the position necessary to 

comply with federal law. The position of Agency 

Administrator is a merit system position. 

. . . . 

(e) Personnel: The Agency Administrator is 

authorized to appoint and prescribe the duties and 

powers of all officers, accountants, attorneys, 

experts, and other persons as may be necessary in 

the performance of the Commission's duties. The 

Agency Administrator may delegate to any such 

person so appointed such power and authority as 

A 

? 

p. 644 
Ronorable Lloyd Criss - Page 3 (JM-149) 

P 

r 

the Agency Administrator deems reasonable and 

proper for the effective administration of this 

Act, and may, at the Agency Administrator's 

discretion, bond any person handling moneys or 

signing checks hereunder. The Agency Administrator or the Agency Administrator's designee 

shall develop a system of annual performance 

evaluations based on measurable job tasks. All 

merit pay for Commission employees must be based 

on the system established under this subsection. 

(Emphasis added). 

However, section b(b) of House Bill No. 2, Sixty-eighth 

Legislature, 1st Called Session, provides: 

(b) The person employed on the effective date 

of this Act as the agency administrator is 

entitled to continue to serve in that capacity at 

the pleasure of the commission. 

A person employed as agency administrator on September 1, 1983 may 

continue to serve at the pleasure of the commission without being 

appointed under the merit system. In the future when the commission 

appoints a new administrator, that appointment shall be through the 

merit system, and such appointee shall be entitled to administer the 

"day-to-day operations" of the agency subject to the overall authority 

of the commission. 

Article 5221b-g(a), which creates the Texas Employment 

Commission, provides that "[tlhe Commission shall consist of three (3) 

members" with one representing labor, one representing employers, and 

one representing the public generally. (Emphasis added). Under the 

amended act, even as to future administrators, the commission retains 

the duty to administer the Texas Unemployment Compensation Act and the 

power to take the action it deems necessary or suitable for that 

purpose, including, among other things, the authority to adopt rules 

and regulations and to make expenditures, as well as the authority to 

determine its own organization and methods of procedure in accordance 

with the act. 

You specifically ask first whether the signature of the agency 

administrator is legally binding and acceptable on deeds and 

contracts. The disposition of state-owned land is a matter over which 

the legislature has exclusive control and the power of an agency of 

the state to sell and convey state property may be exercised only 

under the legislature's authorization. See Conley v. Daughters of the 

Republic, 156 S.W. 197, 200 (Tex. 1913);Lorino v. Crawford Packing 

co., 175 S.W.2d 410 (Tex. 1943); Attorney General Opinions MW-62 

(1979); C-207 (1964); V-787 (1949); V-320 (1947). The terms of 

p.645 
Honorable Lloyd Criss - Page 4 (JM-149) 

legislative authorization for the sale of land must be strictly 

complied with. See State v. Easley, 404 S.W.2d 296 (Tex. 1966); 

Wilson v. CountyofCalhoun, 489 S.W.2d 393 (Tex. Civ. App. - Corpus 

Christ1 1972, writ ref'd n.r.e.); Attorney General Opinion MI+62 

(1979). Material accompanying your opinion request indicates that YOU 

are especially concerned about the authority to sell and convey 

certain property in the city of Laredo. 

I" 1977, the legislature authorized the Texas Employment 

Commission to sell and convey property in Laredo by the enactment of 

chapter 526. Sixty-fifth Legislature, which reads, in pertinent part, 

as follows: 

Sec. 2. . . . The Texas Employment Commission 

shall have the right to reject any and all bids; 

otherwise the highest bid submitted shall be 

accepted. 

Sec. 3. The three members of the Texas 

Employment Commission or a quorum thereof may 

execute and deliver a proper deed conveying the 

real property sold to the purchaser thereof, the 

form of such conveyance to be approved by the 

attorney general. 

Chapter 526 expressly authorizes the commissio" to determine whether 

to reject all bids and authorizes the three members of the commission 

or a quorum of those members to execute a deed to convey the property. 

Since the terms of legislative authority must be strictly complied 

with, we conclude that only the members of the commission, or a quorum 

of the members, may execute a contract or conveyance for the property 

in Laredo and that the signature of the agency administrator on either 

a contract or deed would not be legally binding. 

In order for the agency administrator's signature to be 

sufficient on a contract of sale or conveyance for other property, 

legislative authorization would be required for him, rather than the 

commission, to dispose of the particular property. 

You also inquire whether the agency administrator may expend 

money from the Unemployment Compensation Special Administration Fund. 

Article 5221b-22a. V.T.C.S., which creates the fund, provides in 

pertinent part that 

[tlhere is hereby established as a special fund, 

separate and apart from all public moneys or funds 

of this State, an Unemployment Compensation 

Special Administration Fund which may be used by 

the Commission for the purposes of paying costs of 

p. 646 
Honorable Lloyd Criss - Page 5 (m-149) 

the administration of this Act . . . . The State 

Treasurer shall be the Treasurer and custodian of 

the fund. He shall administer such fund in 

accordance with the directions of the Commission, 

and the Comptroller shall issue warrants upon it 

I" accordance with the directions of the 

Comissio" . . . . The Commissio" =Y. by 

resolution duly entered in its Minutes, authorize 

to be charged against said moneys any expenditures 

which it deems proper in the interest of good 

administration of this Act, provided the 

Commission in such resolution finds that no other 

funds are available or can properly be used to 

finance such expenditures . . . . 

As we have stated, article 5221b-9 contains general provisions 

prescribing the duties and powers of the commission. It states that 

the commission has the duty to administer the Texas Unemployment 

Compensation Act and the power and authority to make such expenditures 

as it deems necessary or suitable for that purpose. Article 5221b-22a 

is authority to the commission to use the specific fund in question 

for the costs of the administration of the unemployment compensation 

act. It provides that the commission, by resolution duly entered on 

its minutes, authorizes the use of money in the fund for expenditures 

which it deems proper in the interest of the good administration of 

the act. The state treasurer and comptroller are directed to 

administer the fund and issue warrants in accordance with the 

directions of the commission. Chapter 1095 of the Sixty-eighth 

Legislature, the General Appropriations Act, appropriates to the Texas 

Employment Commission in item 5 a maximum amount that may be expended 

for the administration of the Texas Employment Commission. See Art. 

I-69 at 5804 of the Session Laws. We are not aware of any statutes 

which also authorize the agency administrator to expend money from the 

Unemployment Compensation Special Administration Fund. 

Finally you ask whether the agency administrator is permitted to 

submit Attorney General Opinion requests. Article 4399, V.T.C.S., 

provides in pertinent part that 

(b) Persons who may request written opinions 

include: 

(1) the Governor; 

(2) the head of any department of the State 

government; 

(3) the heads and boards of penal institutions; 

p. 647 
Honorable Lloyd Criss - Page 6 (m-149) 

(4) the heads and boards of eleemosynary 

i"stitutio"s; 

(5) the heads of all other State boards; 

(6) regents and trustees of State educational 

institutions; 

(7) committees of either branch of the 

Legislature; 

(8) county auditors authorized by law; and 

(9) the chairman of the governing board of any 

river authority. 

. . . . 

(d) The Attorney General is hereby prohibited from 

giving legal advice or written opinions to any 

other than the officers or persons named herein. 

It has long been the policy of the attorney general's office to 

accept requests submitted by the secretary, the executive director, or 

the executive secretary of a board on behalf of the particular board, 

but the request should reflect that the board desires the opinion; 

See Opinion Request Procedures published in the Digest of Opinions of 

the Attorney General of Texas (1970-1981). 

SUMMARY 

A person appointed to the merit system position 

of agency administrator of the Texas Employment 

Commission is authorized to perform the day-to-day 

administrative functions of the agency, while the 

members of the Texas Employment Commission retain 

final responsibility for the administration of the 

Texas Unemployment Compensation Act and may take 

the action necessary or suitable for that 

function. In order for the agency administrator's 

signature to be sufficient on a contract of sale 

or a conveyance of property, legislative 

authorization would be required for him, rather 

than the commission, to dispose of the particular 

property. The Texas Employment Commission is the 

entity with authority to expend money from the 

Unemployment Compensation Special Administration 

Fund. The agency administrator may request 

written Attorney General Opinions on behalf of the 

p. 648 
. 1 

Honorable Lloyd Criss - Page 7 (JM-149) 

Texas Employment Commissio" if the request 

reflects the desire of the commission for such an 

opi"io". 

\ 

Attorney General of Tends 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

David Brooks 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

p. 649