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 EmploymentRelations Texas House of Representatives P. 0. Box 2910 Austin, Texas 78769
Dear RepresentativeCriss: OpinionNo.JM-149
Re: Authority of theAdministratorof theTexas 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

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An Equal Opportunity/ Affirmative Action Em~love~ In accordancewith 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 concerningthe responsibilities of the members of the Texas Employment Commission and those of the agency administratorunder the recently amended act. You also have asked three specificquestions occasionedby 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 commissionretains the final responsibility for the administration of the Texas UnemploymentCompensationAct.
In the case of most state agencies, the board or commission appointedby the governor employsan administratoror directorwho, in turn, employs thepersonnelnecessary for the operationof the agency. Prior to the Sixty-eighthLegislature,the administrativestructureof 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 necessaryor suitable to administer the agency'sduties. SeeV.T.C.S. art. 5221b-9;Attorney General Opinion H-979 (1977). How~r, recent chairmenhave not acted as administratorof the agency. Instead, the commissionhad chosen to employ an administratorwho had no powers or duties designated by statute. The connnissionhad the authority to determine the administrativestructureof the agency and continued to select and appoint persons to fill several top administrative

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positions in the agency. See Texas Sunset Advisory Commission Final Report on Businessand ProfessionalAgencies,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 directiveto the commissionto 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 employeeswill be based.
Article 5221b-9provides, inpertinentpart:

(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 shallbe effectiveupon publication in themanner, not inconsistentwith the provisions of thisAct, which the CO~iSSiO" shall prescribe. The Commission shall determine its own organization and methods of procedure in accordance with the provisions of thisAct. and shallhave a" official seal which shall be judicially noticed. The Commission shall appoint a" Agency Administra~ on thebasis ofmerit to administerthe 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 systemposition.

. . . . (e) Personnel: The Agency Administrator is authorizedto appointand prescribe the duties and powers of all officers, accountants, attorneys, experts, and otherpersons 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 

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# 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. (Emphasisadded).
However, section b(b) of House Bill No. 2, Sixty-eighth Legislature, 1stCalled 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 thepleasure 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-dayoperations"of the agency subject to the overallauthority of the commission.
Article 5221b-g(a), which creates the Texas Employment Commission,provides that "[tlheCommission shall consist of three (3) members" with one representing labor, one representing employers,and one representing the public generally. (Emphasisadded). Under the amended act, even as to future administrators,the commission retains the duty to administerthe TexasUnemploymentCompensationAct 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 regulationsand tomake expenditures,as well as the authority to determine its own organizationand 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 dispositionof state-ownedland is amatter overwhich the legislaturehas exclusive control and the power of an agency of the state to sell and convey state property may be exercised only under the legislature'sauthorization. See Conleyv. 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

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legislative authorization for the sale of land must be strictly complied with. See State v. Easley, 404 S.W.2d 296 (Tex. 1966); 

### Wilsonv. 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 accompanyingyour opinionrequest indicates that YOU are especially concerned about the authority to sell and convey certainproperty 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-fifthLegislature,which reads, in pertinentpart, 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 attorneygeneral. Chapter 526 expressly authorizes the commissio" to determine whether to rejectall bids and authorizes the threemembers of the commission or a quorum of thosemembers to executea deed to convey theproperty. Since the terms of legislative authority must be strictly complied with, we conclude that only themembers of the commission,or a quorum of themembers,may execute a contract or conveyance for the property in Laredo and that the signatureof the agency administratoron either a contractor deedwould not be legallybinding.
In order for the agency administrator's signature to be sufficient on a contract of sale or conveyance for other property, legislative authorizationwould be required for him, rather than the commission,to dispose of theparticularproperty.
You also inquire whether the agency administrator may expend money from the UnemploymentCompensation SpecialAdministration Fund. Article 5221b-22a. V.T.C.S., which creates the fund, provides in pertinentpart that

[tlhere is hereby established as a special fund, separateand apart fromall publicmoneys or funds of this State, an Unemployment Compensation Special Administration Fund which may be used by the Commission for thepurposesof paying costs of

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the administration of this Act
. . . . The State Treasurer shall be the Treasurer and custodian of the fund. He shall administer such fund in accordancewith 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 resolutionduly entered in its Minutes, authorize tobe chargedagainst saidmoneys 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 CompensationAct and thepower and authority tomake such expenditures as it deemsnecessary or suitable for thatpurpose. 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 resolutionduly entered on itsminutes, 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 GeneralAppropriationsAct, appropriatesto the Texas EmploymentCommission in item 5 a maximum amount thatmay 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 authorizethe agency administratorto expendmoney from the UnemploymentCompensationSpecialAdministrationFund. Finallyyou ask whether the agency administrator is permitted to submit Attorney General Opinion requests. Article 4399, V.T.C.S., provides in pertinentpart that

(b) Persons who may request written opinions include: (1)the Governor; (2) the head of any department of the State government; (3) theheads and boards of penal institutions;

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(4) the heads and boards of eleemosynary i"stitutio"s; (5) the heads of all other Stateboards; (6) regents and trustees of State educational institutions; (7) committees of either branch of the Legislature; (8)countyauditorsauthorizedby law; and (9) the chairman of the governing board of any river authority.

. . . . (d)The AttorneyGeneral isherebyprohibited from giving legal advice or written opinions to any other than the officers or personsnamed herein.
It has long been the policy of the attorney general's office to accept requests submittedby the secretary,the executivedirector,or the executive secretary of a board on behalf of the particularboard, but the request should reflect that the board desires the opinion; See Opinion Request Procedurespublished in the Digest of Opinions of the Attorney General of Texas (1970-1981).
SUMMARY
A person appointedto themerit systemposition of agency administrator of the Texas Employment Commission is authorized toperform the day-to-day administrative functions of the agency,while the members of the Texas Employment Commission retain final responsibilityfor the administrationof the Texas Unemployment CompensationAct and may take the action necessary or suitable for that function. In order for the agencyadministrator'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 writtenAttorneyGeneralOpinions on behalf of the

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Texas Employment Commissio" if the request reflects the desire of the commission for such an opi"io". \

Attorney General of Tends
TOM GREEN FirstAssistantAttorney General
DAVID R. RICHARDS ExecutiveAssistantAttorney General Preparedby Nancy Sutton AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman David Brooks Colin Carl Susan Garrison JimMoellinger Nancy Sutton

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