Mr. D. F. Smallhorst 

Executive Secretary 

Opinion No. C-174 

Texas Water Pollution Control Re: Various questions concernBoard ing the construction of 

Austin 5, Texas Article 7621d, Vernon's 

Civil Statutes. 

Dear Mr. Smallhorst: 

You have requested the opinion of this office on a 

number of questions concerning the construction of Article 

7621d, Vernon's Civil Statutes (State Water Pollution Control 

Board Act). The questions will be stated and answered in the 

order in which they were submitted. 

"(1) Does the personal representative of an 

ex-officio member of the Board, while engaged in 

the discharge of official Board duties on behalf 

.of and as authorized by'such member, stand in the 

place and stead of such member for purposes of 

attending, participating in and voting on matters 

arising at Board meetings and hearings?" 

Section 3(d) of Article 762ld, Vernon's Civil Statutes, reads as follows: 

"Each ex-officio member of the Board listed 

in paragraph (c) above, is authorized to delegate 

to a personal representative from his office the 

authority and duty to represent him on the Board, 

but by such delegation a member shall not be relieved of responsibility for the acts and decisions 

of his representative." 

Under Section j(d) of Article 7621d, as quoted above, 

a personal representative of an ex-officio member would stand 

in the place of the ex-officio member for the purposes of Board 

duties. This is evident from the language of the statute and 

from the provision which places responsibility for the.acts and 

decisions of the personal representative on the ex-officio member. If the personal representative could not act in the place 

of the ex-officio member there would be no need for the placing 

of responsibility. 

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Mr. D. F. Smallhorst, page 2 (C-174) 

"(2) If an ex-officio member of the Board 

is delegated the authority to take testimony in 

a hearing called by the Board, as authorized by 

Section 4(d), paragraph (21, . e e may such member delegate to a personal representative from 

his office the authority and duty to represent 

him for the purpose of taking testimony at such 

hearing?" 

Section b(d)2 of Article 7621d reads as follows: 

l'(d) The Board is hereby authorized to: 

"(2) delegate to one (1) or more of its 

members or to one(l) or more of its employees 

~~ the authority to take testimony in any hearing 

called by the Board with power ~to administer 

oaths, but all orders entered shall be made by 

and in the name of the Board after its official 

action and attested to by the Executive Secretary;" 

Section b(d)2 of Article 7621d, as quoted above, 

states that the Board is authorized to delegate authority to 

a member or employee to take testimony in a hearing called by 

the Board. From the wording of the statute, the authority must 

be given by the Board to the person actually taking the testimony at the hearing. This would preclude an individual member 

making a delegation of authority to take testimony at a hearing. 

The authority to take testimony must be given by the Board directly to,the person who,is to take the testimony. 

‘“(3) May the Board in delegating authority 

to take testimony in a hearing called by the Board, 

as authorized by said SeCtion 4(d), paragraph (21, 

make such delegation to a named ex-officio member 

and further authorize such member to delegate such 

authority to a personal representative from his 

office?" 

Section k(d)2 of Article 7621d, as quoted earlier, 

does not give the Board the power to delegate to one of its 

,members the appointment power of the Board with respect to hearing officers or persons to take testimony at a hearing called 

by the Board. It therefore follows that a delegation of authority to take testimony at a Board hearing must be made by the 

Board itself. 

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. . . 

. ’ 

Mr. D. F. Smallhorst, page 3 (C-174) 

"(4) Is the duly authorized personal representative of an ex-officio member of the Board 

entitled to be reimbursed from funds available 

for the purposes of Article 7621d for his actual 

and necessary travel and other expenses incurred 

in the discharge of official Board duties as such 

personal representative, to the same extent that 

the ex-officio member would be so entitled?" 

Section j(e) of Article 7621d, reads as follows: 

ltActual and necessary travel and other expenses incurred by the three (3) ex-officio members in the discharge of their official duties as 

members of the Board shall be paid out of any 

funds which are or may become available for the 

purposes of this Act. Employees of the Board 

shall receive their necessary traveling expenses 

while traveling on the business of the Board." 

Section 3(e) provides for the payment of the traveling expenses for the ex-officio members and the employees of 

the Board and makes no mention of the expenses of the personal 

representatives of such ex-officio members. In view of this 

language, the statute must be.construed as applying to the exoffidio members and employees of the Board only. The personal 

representative would not be entitled to receive travel expenses 

under Section 3(e) of Article 7621d. 

"(5) Are the moneys in Fund 273 expended under 

operational control of Budget 49 funds of the Board 

or expendable by the Board?" 

The facts concerning Fund 273 as set out in your opinion request are as follows: 

"To qualify for Federal funds under Public 

Law 660, it is necessary for the qualifying agency 

to develop a water pollution control program satisfactory to the Public Health Service, account for 

expenditures of Public Law 660 funds, and perform 

other functions relative to the administration of 

the program. Because of the limited staff authorized and available to the Board, the Board, which 

is itself eligible to qualify for such Federal 

funds, by resolution requested the State Department 

of Health, which in the years prior to the establishment of the Board was the agency qualifying for 

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. . 

Mr. D. F. Smallhorst, page 4 (C-174) 

such funds, to meet or continue to meet all 

requirements and to apply for and receive 

Federal funds for water pollution control activities in the State for the 1962 and 1963 

Federal fiscal years. A sin.iilar resolution 

was adopted for the 1964 and 1965 Federal fiscal years. . . . At the request of the Board, 

the Health Department also furnishes fiscal 

and accounting services for the Board, as authorized by Section 3(h) of Article 7621d, 

thereby relieving the Board of the necessity 

of employing personnel to perform such services a The F'uhlic Health Service funds together 

with other Federal moneys are delivered periodically in a single Federal warrant made payable to the Treasurer of the State of Texas.~ 

Upon the advice of the State Department of 

Health, the Federal water pollution control 

moneys are set up by the Comptroller in two' 

funds. One of these is Fund 153, which also 

receives moneys trans~ferred to the Board from 

other State agencies under Section 3(i) of Article 76216. This fund is recognized by the 

Comptroller as a Board fund. The other is Fund 

273, which is a Health Department fund, recognized as such by the Comptroller. However, part 

of the money in Fund 273 is reserved by the 

Health Department for the Board to finance some 

of the Board's operations, and these expenditures 

are made under an operating control budget known 

as Budget 49. . . .'I 

According to the facts submitted, the moneys in Fund 

273 are grants from the Federal Government to the Health Department based on the qualifications and application of the Health 

Department. The funds are carried by the Comptroller as Health 

Department funds. Even though these moneys are budgeted to the 

Board by the Health Department, they are still Health Department funds until they are paid over to the-Board. The moneys.in 

Fund 273 under Budget 49 would not be considered funds of the 

Board and would not be expendable by the Board. 

"(6) Would a person on the staff of the 

Board whose salary is paid from Fund 273 under 

Budget 49 and who is subject to the supervision 

of the Executive Secretary of the Board, but who 

is also considered by the Health Department 'as 

an employee of that agency for retirement, armal 

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Mr. D. F. Smallhorst,'page 5 (C-1.74) 

leave and other purposes of personnel policy, 

be an 'employee' of the Board for the purpose 

of being eligible.tO have delegated to him the 

authority to take testimony in a hearing 

called by the Board, as authorized by said Section 4(d), paragraph (211" 

As stated in your question, the person‘would be paid 

from Health Department funds, would be considered by the Health 

Department as thelr.empIoyee;forpersonnel @urposes; and would 

also~be considered an employee of the Health Department for retirement and annual leave. Under the facts as stated, the person.would be a Health Department employee and not an employee 

of the Board. 

'_ "(7) Would a member of the staff of the 

Board whose salary is paid from Fund 153 and who 

is subject to the supervision of the Executive 

~~~ Secretary of the Board be an 'employee' for such 

purpose?" 

: .: The moneys in Fund 153 are Board funds, so'if a person was paid by the Board, was subject to the supervision of 

the Executive Secretary, and was hired under personnel policies 

of the Board, the 'person would be en employee of the Board for 

purposes of Article 7621d. 

"(8) Would a person retained as a professional consultant under authority of Section 3(h) 

of the Act and compensated from.Fund 153 be an 

'employee' for such purposes?* 

Normally a professional consultant is not considered 

an employee, but is considered an independent contractor. If 

the consultant IS compensated on a retainer or fee basis and if 

he is not subject to supervision in the details of his work, he 

would be considered as an independent contractor. 

Section 3(h) of Article 7621d reads, in part, as follows: 

II 

. . . the Board may employ end compensate 

with funds available therefor professional consultants, assistants and employees that may be 

necessary. . . .I' 

Section 3(h), quoted in part above, draws a distinction between professional consultants and employees and since 

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. * 

.i _ . I, 

Mr. D. F. Smallhorst, page 6 ' (C-17k)~ '-':"' 

Section 4(d)~2 deals with employees and members only, the Legislature must have,intended to carry out this distinction with 

regard to authority to take testimony~ at its hearings. It follows that a professional consultant could not be considered an 

"employee" for purposes~ of Section b(d)2 of Article 7621d. 

SUMMARY 

Under Section 3(d) of Article 7621d of Vernon's 

Civil Statutes, a personal representative of an ex- 

: 'officio member of the Board,would stand in the place 

of the ex-officio member for the purposes of Board 

duties. .Under Section 4(d)2j the'authority to take 

testimony must be given by the Board directly to the 

person who is to take the testimony, Section 3(e) 

provides for the payment of the traveling expenses 

.~ for the ex-officio membersand employees of the Board 

only and does not apply to their personal re resenta- 

'tives. The moneys in Fund ,273 under Budget I: 9 would 

not be considered funds of the Board and would not be 

expendable by the Board. A person paid from Health 

~~X .Department funds:and considered .by the Health Depart- 

. . -:-me& as their employee for purposes of personnel 

;q)olicy, retirement,, and annual leave- would notbe an 

,:' employee of the Board,for purposes of Section 4(d>2. 

A person paid from Board funds, hired under Board personnel policy, and subject to the control and supervision of the Executive Secretary of the Board would be 

a Board employee for purposes of Section 4(d)2. A 

professional consultant would not be considered an employee for purposes of Section &(d)2,of Article 7621d. 

Yours very truly, 

WAGGONER CARR 

.Attorney General 

2 

a4Auh fz%omaBY 1' 

Jack G. Norwood 

JGN:wb Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

.~Gordon Appleman 

'Jerry drock 

Cecil Rotsch 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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