### TEIE ATTOWNEY GEXEIUI. OF TESLAS
ACSTIN ll.TExAS

Honorrble George ii. Sheppard Comptroller of Oubllc Accountr Aurtla, Texar Dear sir1

i O-3287 Ret Concerning rtatue o? State Auditor’s Department, ..the Senate having refi.aeC oonfirmatlon of TomC. King and the Governor thus far having nominated nc other appointee.
To your letter of .Narch15, 191, you attach a claim of Stovall-Richter Printing CompanyIn the amountof ’ 

### 759foratetlonery 

### furnished the State Auditor’s Department, bearing the elgnature of Fred R. Donoho Flrat Assistant State Auditor, and the approval of the Board OP Controi. During the last year the Ctovernorappointed Mr. TomC, King State Auditor and submitted hla nameto the State Senate at Its present renmion for oonfln6atlon which wa6refused. In vlen of the fact thet Hr. King’8 appointment wa6rejected prior to the approval of the olalm, you request our opinion a6 to whether you should issue a warrant ln payment. You alro request our opinion a8 to whether the regular employee8 of the Auditor’s Department, 6t tha time the Senate refused to oonflrm Nr. Klnglr appointment, would be authorized to receive their ualarl after the date OSouch refusal, they having continued the perf ’ormance of their respective duties. In the event of an afrlrmative anover to thl6 quertlon you request UBto advise whowould be authorized to approve the ulary clolm8. Ye ~111 obrerve that 86yet no 6uccellaor to Kc. King has been appointed,

Ye 

### havewritten Opinion 

### No.O-3343expra6slng the view that the Senate’8 rejection of Mr. King86 appointment leitthe office held by himwholly vaoant.

Article 4413a-6, Vernon’s Annotated Civil Statutes, reads1

.

‘In the event said Auditor shall find It necessary to have aeslstance in the discharge of the dutlee herein imposed upon him, he mayapply to the Qovernor for such assistance and the Governor Is hereby authorized, Lnhis discretion, to appoint such asei6tant or aealrtants, including rtenographlc and clerical aeslsta

‘$ as he may con8lder neCe66ary, In Order t0 accomplish oi thlr Act. ” he purposessionorable George H. Sheppard, ?sge 2 3-3287

UeUWadvised by )Ir. Oonohothat it **has** long been the practice In the 8tate Auditor’s Deparlzaent r0r one 0r the aBBi$t~tB to be designated **as** llrst Asslstant. The Qenersl Lkart6iental Approprlatlon Bill (S.B. 427, p. 26, Vol. 2, Acts 46th Leg.P csrrles sn appmprlatlon of ~~.OO per year for the ‘First Anslstant State Audltor,” Also oontalned ln S.B. 427are Itemized approprlstions for other assistants and employees. There Is no statute defining the duties of the First Asslstsnt, **as** ls the aase in **Base** of the departments. It Is noted that the ssslstants In the Stat8 AudItor’s Department are appointed ghe Qovernor

. Furthermorehe Is expressly given the powerto **remove** Article 4413a-7,V.A.C.S. Suoh esslstsnts, including First Ass&ant Donoho, as were lawfully 6ervlng In th8 State Auditor’s hpartment at the time of Hr. King’s rejection vere not discharged lpao facto by such rtjectlolt.

Article 4355,Revised Civil Statutes, requires claims against the Stat8 to bear the !‘slgnature of the head of the department or other Iperson responsible for lncurr~ - the expenditure. ” -- Article 634, Revised Clvll Statutes, read68

“!&he Board of Control shall purchase all the supplies used by each D8pfirtmOntof the State @over& m8nt, lnoludlng the State Prison Syste) snd each 

### l le8mosynary lnstitutlon, Normal school, Agricultural snd Ueohanlcal College, University of Texas, andeach and all other State Schools or Departments of the State Govemrmentheretofore or hereaf’ter created. Such suppllea to include z%?niture and flxture6, technical instruments and books, and all other things required by th8 different depsrtm~nts or lnstltutlons, except strictly perlahable **goods.**

In the current Departmental Appropriation Bill, S.B. 427, at page 223, Special **Laws,** 46th Leg., it Is provided1

“All printing, and stationery shall be purchased through the Bcord of Control and shall be confined to such articles and qualities a8 eelected and contracted for by the Board, except certain printing provided by law to be done by several State agencies. Nopart of the herein appropriatce amount6shall be uwd for the purchase of embossed or engraved print13 and stationery except for the Governor’s office,,’

SSnce the Baerd of Control, the purchasing agent of the State, **has** approved this claim in evidence of the Sect th8t the purchese 1s ulthln Its contract, and In vlew of the fact that Article 4355 doe6 not necessarily requlre that authentication be by the department head, it Is our opinion that ylr. Donoho ’s signature on the claim eatlsfles the 6tatute andwe answer your flr6t question in the affirmative.

In the Oeneral Departmental Appropriation Bill, S.B. 42’7,Honorable Qeorge H. Sheppard, Page 3 O-3287

46th Leg., at page 229, Vol. 2, Acts 46th Lag., we fin& the tollowIng:

“Xo salary for which an spproprl8tion la made herein shall be paid to any perron unlesr such person actually dirchargee assigned duties. Svery monththe head of each department mhall ottaoh to the payroll for hir department an affidavit, under oath, stating that the persona linted ln said payroll actually perfomed the duffeer for which they were being paid. The Comptroller shall not iaeue warrant8 for the payment of 6alarlea Mated on said payroll unless this affldavit la f

’iled with him.” Since the employees In the State Auditor’6 Department serve under appointment by the Governor, thone whohave not been discharged by himandwhohave continued in the performance of their customary duties since the rejection of Ur. Klrg manifestly are entitled to be paid for their 8ervicea. Suppose near the end of comemonth the head of euch a department should die without having madethe affidavit covering the service0 of the departmental em#oyecs for such monthand the successor could not make the affldavlt due to lack of knowledge of the facts -- would such employees be deprived absolutely of theti pajrby the above provision In the Departmental Approprlatlon T)lll? We dc not thlnk 80. It is our opinion that under such excegtlonal clrcuinstances as that and the present the Comptroller mayaccept other proof. In sny event he should require the affidavit of the First Asnl8tant, and if satlsfled 618 to the correctnens of the affidavit of BUC h Riret Assistant he mayIssue Balaay warrants to employees ln the State Auditor’s Department In accordance theremlth.This opinion ia confined t3 the exact facts presented ln your request. Pours very truly,
ATl’ORXHYQENERAL

OFTEXAS By s/ Glenn R. Lewis QleM A. kJWiB Asalstant

APPROVED APRIL4, 1941 e/ Qerald C. Mann A’ITORXRYQHNRRAL

OFTEXAS Thle opfnllrn Considered andApproved In Limited Conference