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 Tom C. King and the 

Governor thus far having nominated nc 

other appointee. 

To your letter of .Narch 15, 191, you attach a claim of 

Stovall-Richter Printing Company In the amount of’ 759 for atetlonery 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 Ctovernor appointed Mr. Tom C, King 

State Auditor and submitted hla name to the State Senate at Its present 

renmion for oonfln6atlon which wa6 refused. In vlen of the fact thet 

Hr. King’8 appointment wa6 rejected 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 OS ouch refusal, they having continued the perf’ormance of 

their respective duties. In the event of an afrlrmative anover to thl6 

quertlon you request UB to advise who would be authorized to approve the 

ulary clolm8. Ye ~111 obrerve that 86 yet no 6uccellaor to Kc. King 

has been appointed, 

Ye have written Opinion No. O-3343 expra6slng the view that 

the Senate’8 rejection of Mr. King86 appointment leitthe office held by 

him wholly 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 may apply to the Qovernor for such 

assistance and the Governor Is hereby authorized, Ln his 

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 purposes 
sionorable George H. Sheppard, ?sge 2 3-3287 

Ue UW advised by )Ir. Oonoho that 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 Lk art6iental 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. 427 are 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 . Furthermore he Is expressly given the power to 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 

I person responsible for lncurr~ - the expenditure. ” -- 

Article 634, Revised Clvll Statutes, read68 

“!&he Board of Control shall purchase all the 

supplies used by each D8pfirtmOnt of the State @over& 

m8nt, lnoludlng the State Prison Syste) snd each 

l le8mosynary lnstitutlon, Normal school, Agricultural 

snd Ueohanlcal College, University of Texas, and each 

and all other State Schools or Departments of the 

State Govemrment heretofore 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. No part of the herein appropriatce 

amount6 shall 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 and we 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 month the 

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 who have not been discharged 

by him and who have 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 come month the head of euch a 

department should die without having made the affidavit covering the 

service0 of the departmental em#oyecs for such month and the successor 

could not make the affldavlt due to lack of knowledge of the facts -- 

would such employees be deprived absolutely of theti pajr by 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 may accept 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 hRiret Assistant he may Issue 

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’ORXHY QENERAL OF TEXAS 

By s/ Glenn R. Lewis 

QleM A. kJWiB 

Asalstant 

APPROVED APRIL 4, 1941 

e/ Qerald C. Mann 

A’ITORXRY QHNRRAL OF TEXAS 

Thle opfnllrn Considered and Approved In Limited Conference