Mr. D. F. Smallhorst

Executive Secretary OpinionNo. C-174
Texas Water PollutionControl 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 (StateWater Pollution Control Board Act). The questionswill be stated and answered in the order in which they were submitted.

"(1) Does the personal representativeof an ex-officiomember of the Board, while engaged in the discharge of officialBoard duties on behalf .ofand as authorizedby'suchmember, stand in the place and stead of suchmember 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-officiomember of the Board listed in paragraph (c) above, is authorized to delegate to a personal representative from his office the authority and duty to representhim on the Board, but by such delegation amember shallnot 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-officiomember would stand in the place of the ex-officiomember for the purposes of Board duties. This is evident from the language of the statute and from the provisionwhich places responsibility for the.acts and decisions of the personal representativeon the ex-officiomember. If the personal representative could not act in the place of the ex-officiomember there would be no need for the placing of responsibility. -852-Mr. D. F. Smallhorst,page 2 (C-174)

"(2) If an ex-officiomember of the Board is delegated the authorityto take testimony in a hearing calledby the Board, as authorizedby Section 4(d), paragraph (21,

. e emay suchmember delegate to a personalrepresentative from his office the authorityand duty to represent him for the purpose of taking testimony at such hearing?" Sectionb(d)2 of Article 7621d reads as follows: l'(d) The Board ishereby authorized to:

"(2) delegate to one (1) or more of its members or to one(l) ormore of its employees

~~the authority to take testimony in any hearing called by the Board with power~toadminister oaths, but all orders entered shall be made by and in the name of theBoard after its official action and attested to by the Executive Secretary;" Sectionb(d)2 ofArticle 7621d, as quoted above, states that the Board is authorizedto delegate authority to a member or employee to take testimony in a hearing called by the Board. From the wording of the statute, the authoritymust be given by the Board to the person actually taking the testimony at the hearing. This would preclude an individualmember making a delegationof authority to take testimony at a hearing. The authority to take testimonymust be givenby the Board directly to,the personwho,is to take the testimony.

‘“(3) May the Board in delegating authority to take testimony in a hearing called by the Board, as authorizedby said SeCtion 4(d), paragraph (21, make suchdelegation to a named ex-officiomember and further authorize suchmember to delegate such authority to a personal representativefrom his office?" Sectionk(d)2 of Article 7621d, as quoted earlier, does not give the Board the power to delegate to one of its ,membersthe appointmentpower 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 hearingmust be made by the Board itself. -853-.. .

. ’

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

"(4) Is the duly authorized personal representative of an ex-officiomember 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 officialBoard duties as such personal representative,to the same extent that the ex-officiomember would be so entitled?" Section j(e) of Article 7621d, reads as follows: ltActual

and necessary travel and other expenses incurredby the three (3) ex-officiomembers in the discharge of their official duties as members of the Board shallbe 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-officiomembers and the employees of the Board andmakes no mention of the expenses of the personal representativesof such ex-officiomembers. In view of this language, the statutemust be.construed as applying to the exoffidiomembers and employees of the Board only. The personal representativewould not be entitled to receive travel expenses under Section 3(e) of Article 7621d.

"(5) Are themoneys in Fund 273 expended under operational control of Budget 49 funds of the Board or expendableby the Board?" The facts concerningFund 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 theBoard was the agency qualifying for -854-. .

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

such funds, to meet or continue to meet all requirementsand to apply for and receive Federal funds for water pollution control activities in the State for the 1962 and 1963 Federal fiscalyears. 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 authorizedby Section 3(h) of Article 7621d, thereby relieving the Board of the necessity of employingpersonnel to perform such servicesa The F'uhlic Health Service funds together with other Federal moneys are delivered periodically in a singleFederal 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 setup by the Comptroller in two' funds. One of these is Fund 153, which also receivesmoneys trans~ferred to the Board from other State agenciesunder Section 3(i) of Article 76216. This fund is recognizedby the Comptroller as a Board fund. The other is Fund 273, which is a Health Department fund, recognized as suchby the Comptroller. However, part of the money in Fund 273 is reservedby the Health Department for the Board to finance some of the Board's operations,and these expenditures aremade under an operating controlbudget known as Budget 49.

. . .'I According to the facts submitted, themoneys in Fund 273 are grants from the Federal Government to the Health Department based on the qualificationsand applicationof the Health Department. The funds are carriedby the Comptroller as Health Department funds. Even though thesemoneys are budgeted to the Board by the Health Department, they are still Health Department fundsuntil they are paid over to the-Board. The moneys.in Fund 273 under Budget 49 wouldnot be considered funds of the Board andwould not be expendableby 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 consideredby the Health Department 'as an employee of that agency for retirement, **armal**
**-855-**

### Mr.D. F. Smallhorst,'page

### 5 (C-1.74)

leave and other purposesof personnelpolicy, be an 'employee'of the Board for the purpose of being eligible.tOhave delegated to him the authority to take testimony in a hearing called by the Board, as authorizedby said Section 4(d), paragraph (211"
As stated in your question, the person‘wouldbe 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.wouldbe 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 supervisionof 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 'personwould be en employee of the Board for purposes of Article 7621d.



### "(8) Would a person retained as a professional consultantunder authority of Section 3(h) of the Act and compensated from.Fund 

### 153be an 'employee'for such purposes?* Normally a professionalconsultant is not considered an employee, but is consideredan independent contractor. If the consultant IS compensatedon a retainer or fee basis and if he is not subject to supervisionin the details of his work, he would be considered as an independentcontractor.

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

II

. . . the Board may employ end compensate with funds available thereforprofessional consultants, assistants and employees thatmay be necessary. . . .I' Section 3(h), quoted in part above, draws a distinction between professionalconsultants and employees and since

-856-. * .i

_ . I,

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

Section 4(d)~2

deals with employeesandmembers only, the Legislaturemust have,intended to carry out thisdistinctionwith regard to authority to take testimony~ at its hearings. It follows that a professionalconsultant couldnot be considered an "employee"for purposes~ of Sectionb(d)2 of Article 7621d.
SUMMARY Under Section 3(d) of Article 7621d of Vernon's Civil Statutes,a personal representativeof an ex- :'officiomember of the Board,would stand in the place of the ex-officiomember for the purposes of Board duties. .UnderSection 4(d)2j the'authorityto take testimonymust be givenby the Board directly to the person who is to take the testimony, Section 3(e) provides for the payment of the travelingexpenses
.~ for the ex-officiomembersand employees of the Board only anddoes not apply to their personal re resenta- 'tives. The moneys in Fund ,273under Budget I: 

### 9 would not be considered funds of the Board andwould not be expendableby the Board. A person paid from Health ~~X.Departmentfunds:and considered .bythe Health Depart-

..-:-me& as their employee for purposes of personnel ;q)olicy,retirement,, and annual leave-

would notbe an ,:' employee of the Board,forpurposes of Section 4(d>2. A person paid from Board funds, hired under Board personnelpolicy, and subject to the control and supervision of theExecutive Secretary of the Board would be a Board employee for purposesof Section 4(d)2. A professionalconsultantwould not be consideredan employee for purposes of Section&(d)2,ofArticle 7621d.
Yours very truly,
WAGGONER CARR .AttorneyGeneral

2 a4Auh fz%omaBY 1' Jack G. Norwood JGN:wb Assistant APPROVED: OPINIONCOMMITTEE W. V. Geppert, Chairman .~Gordon

Appleman 'Jerrydrock Cecil Rotsch APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone -857-