OWlCE OF THE ATTonNEV GENERAL. STATE OF TEXAS JOHN CORNYN

August 30,200O

The Honorable A. J. (Jack) Hartel Liberty County Attorney P.O. Box 9127 Liberty, Texas 175759127 Opinion No. JC-0276

Re: Appointment and powers of a deputy treasurer (RQ-0224-JC)

Dear Mr. Hartel:

You have asked this office whether a county treasurer may appoint a deputy, and whether such adeputy may perform all acts which the treasurer may legally perform. We conclude that the treasurer may do so, provided the appointment is made in conformity with the employment provisions ofchapter 151,subchapter A ofthe Texas Local Government Code; we further conclude that such adeputy is “aperson appointed to act for another, a substitute, a delegate, an agent,” and
as such “may do anything that his principal can do.” Nail1 v. State, 129 S.W. 630,63 1(Tex. Crim. App. 1910).

As apreliminary matter, you inquire about section 83.005(a) ofthe Local Government Code, which provides that “[i]n acounty in which the county treasurer does not have adeputy, the county treasurer may appoint a person, subject to the approval of the commissioners court, to act in the treasurer’s place. The appointed person may act in the treasurer’s place only if the treasurer is absent, unavoidably detained, incapacitated, or unable to act.” TEX. Lot. GOV’T CODE ANN. 3 83.005(a) (Vernon 1999). Section 83.005(a), however, does not address your concerns. The purpose ofthe section isthe appointment ofatemporary replacement for the treasurer, not adeputy. As the Senate bill analysis of the measure which became section 83.005 explains, “Currently, in many counties, the county treasurer is the only person authorized to execute certain financial responsibilities. As aresult, ifthe county treasurer is unable to perform these duties, the county’s obligations may not be met on atimely basis. H.B. 1475 would authorize the county treasurer, in
acounty without adeputy county treasurer, to appoint aperson to act in the treasurer’s place ifthe treasurer is absent, unavoidably detained, incapacitated, or unable to act.” SENATECOMM. ON INTERGOVERNMENTALRELATIONS, BILL ANALYSIS, Tex. H.B. 1475, R.S. (1997). The person appointed pursuant to section 83.005, in short, is merely appointed to perform certain tasks for the period in which the treasurer is unable to do so. For that period, he or she is “[dlressed in a little brief authority.” WILLIAM SHAKESPEARE,MEASUREFORMEASURE, act 2, SC.2, In. 118.
The appointment of adeputy treasurer is governed by chapter 151ofthe Local Government Code. Section 151.001 provides that “[a] district, county, or precinct officer who requires theThe Honorable A. J. (Jack) Hartel - Page 2 (JC-0276)

services of deputies, assistants, or clerks in the performance ofthe officer’s duties shall apply to the commissioners court of the county in which the officer serves for the authority to appoint the employees,” TEX. Lot. GOV’T CODE ANN. $ 151.001(a) (Vernon 1999) (emphasis added), and further specifies the contents of such an application. The commissioners court determines the number of such appointments to be made, and authorizes the appointments. Id. $ 151.002. The commissioners court may not, however, attempt to influence the appointment of any particular person. Id. 5 151.004. The power to make the appointments is lodged in the officer who applied for them. Id. 5 151.003.
The county treasurer is a county officer for the purposes of chapter 151 of the Local Government Code, and as such has the power to appoint adeputy treasurer ifthe provisions ofthat chapter are complied with. See Tex. Att’y Gen. Op. No. O-4454 (1942) (county treasurer had power to appoint deputy under statutory predecessor of chapter 151).

A deputy treasurer, once appointed, has the powers of his or her principal. A deputy is “a person appointed to act for another, a substitute, adelegate, an agent.” Naill, 129 S.W. at 63 1. As distinct from an assistant, a deputy “may do anything that his principal can do.” Id. “That one is called adeputy carries with itthe fact that he is an alter ego for his superior, being charged with all the duties as well as the responsibilities of his superior, and empowered to perform the acts and discharge the duties of such superior, and to that extent becoming the superior himself in his superior’s absence.” Bigham v. St&e, 148 S.W.2d 835, 840 (Tex. Crim. App. 1941).
The statutory restrictions imposed by section 83.005 of the Local Government Code on the temporary substitute for the treasurer, namely that such a person may act “only if the treasurer is absent, unavoidably detained, incapacitated, or unable to act,” are irrelevant to the proper appointment of a deputy treasurer pursuant to chapter 151. A deputy treasurer so appointed may exercise all the powers of the treasurer.The Honorable A. J. (Jack) Hartel - Page 3 (X-0276)

SUMMARY
Section 83.005 ofthe Local Government Code concerns only the appointment of a temporary substitute for the county treasurer when the treasurer is“absent, unavoidably detained, incapacitated, or unable to act.” TEX.Lot. GOV’TCODE ANN. 5 83.005(a) (Vernon 1999). The appointment ofa deputy treasurer is governed by chapter 151 of the Local Government Code. A deputy treasurer properly appointed pursuant to chapter 151of the Texas Local Government Code may exercise all the powers ofthe treasurer.

Attorney General of Texas

ANDY TAYLOR First Assistant Attorney General

CLARK KENT ERVIN Deputy Attorney General - General Counsel

SUSAN D. GUSKY Chair, Opinion Committee

James E. Totntelott Assistant Attorney General - Opinion Committee