This opinion modifies Opinion

No. O-1126

Honorable

Len Alrup Exeoutive

Secretary-Director State Comirrion for the Blind Land Office Austin, Texas
Dear Mr. Alsupt OpinionNo. O-5292 Re: Approvalof claims for pay7 ment by State Comvlosio4 for the mind.
Ue are in receipt'of your letter of "cy 6, 1943, inwhioh you sub. nit, the following

question

for our opinion: sPleass

advise the State Commission for the Blind

whether the Board of the State Conmission for the Hlind

mey delegate

to any of its members or to its executive secretary

the authority

to approvefor paymentall expenditures

which may have been authorized by the State Comnission for the Blind." The State Commission for the Blind is provided for in Article 320% Vernon’sTexas Civil Statutes**(Aots** 1931, 42nd Lag. p. 122, oh. 80, as amended

Acts 1939, 46th Leg. S.B. So. 462). In Section1, a threemember boardwas originally provided

for but by 1:.

B. 362, Reg. Seer. 48th Leg., the membership

of %~e Board

was increased

to six. **A** aarefulexamination of the acts relating to this oomsissionshcws that the full responsibility for performing

the dutiesthereinprovidedis vested in the ConmIssion as such. Section1 8s emended provides

that four members shall oo4stitute 8 quorum for the transaction of businsss,

end that the Comnirsion may annu**ally elect**  **a** Sectetary and such **other** employees as may bs authoriaed by the generalor special appropriation

for raid Conmission. By Section (a) it is probided that: "The State Conmission for the Blind shallmaintaina Bureau of Infornvtion

. . . The Comnir~i~n shall in its discretion

furnish

materials,

tools and books for the use as a mesn~ in rehibilitating such persons

and it my establish workshops

and salesrooms,

and shallhave authority to use any ~receipts or earningr

that aoorue from the operation of industrial

sohools,

ralssrooms,

or workshops as provided

in thir Chapter
. . . The Conmission may receive

gifts, bequests,

or devisesfrom individuals, associationa

or corporations,

and mry expend them-in aooordenoe with the provisions of this **Ad. ”**  **We** have/ Hon. Lon Alsup, p.ge 2 (O-5292)

not attemptedto set out all the authorisation of the, Ctirrion, but quote the foregoing to demonstrate

that the responsibility is vested directlyin the C1nmuissio4 as such and that discretionary functions

are committed

to the Commission. Section 3 provides

that: "The State Conmdsrio4 for the Blindmay appoint and fix the compensation of an executive

secretary

and such other

workers as may be necessspy to make effective

the purposes

of this bet within the rppropriations provided.,"
Ws do not think that this section may be construed

as vesting in the executive

secretrry

any discretionary

authority

whichwould be normallyvested in the Commission as the he&d of the dep+rtment or division

of State government. The exeoutive secretary

is an employee

of the Cdrsion wrkiag under the direction of the Commission

in oarrying

out its directions, and he is givenno authority by the statuteindependent of the Conmission. I4 otherwords, in matters involving the exeroise

of discretion,

he may act 8s an exeoutiw officerto oarry out and performonly those things whereinthe Cornmission

has exeroised

the discretion.
In Horne Zoological Arena Compeny

va. City of Dallas, 45 S.pi. (2d) 714, the court had the following to say with reference to the delegation

of suthoritya "The general

rule is that,where the law creates a board to have oharge of the affairsof 8 municipality **or** a particular

part thereof,

such boardmay appoint egentsto dhsoharge ministerial

dutiesnotcelling

for the exeroise of reason or discretion, but it cannot go beyondthis and delegateto others the disoharge of duties

whioh or11 for reason or discretion, end which are regarded as part of the publictrust assumedby the board. The power to exercise

discretion

in matters entrusted to such boards cannot bs delegated,

surrendered,

or bartered

away.
w

. The psrk boardwas charged with the trust of spending the money set rbiie for the maintenance of parka, and it couldnot *void its responsibility by delegating

to other8the authority to act for it in the purobase of such animalstithout limit 8sto the kind of snim8lsto be pxobased or the prioe tobe paid therefor. The trial court correctly held thst Jacoby merely by virtue of his authority as director

of parek did not hsve authority to m&e the contract in question."

m duo 00.11

attenth to the following *tatutes.~ '3
,, &ticle 4344, R.C. S. 1926, Subdivision 4, provides

that the Comptrollershalls "Require

all aooounts

presented

to him for settlement not otherwise

provid-, ed for by law to be made on forms prescribed by him, all suoh accounts to be verifiedby affidrvit~ as to their correctness, mnd he may &n.i4ister ~Hon0 Len. Aloup - page 3 (O-5292)

the oath himselfin any c8se in which he my deem it **neaessmy, ”**  &+icle 4355 R.C. S. 1925, as' oh. 243, providss

among other things:amended, Acts 1931, 42nd Leg., p. 400,

"All claims and account8 against

the State shallbe suhnitted on forms prescribed

by the Comptroller

and in duplicate,

when required

by him except 018imsfor pensions, and shall

be so prepared

as to providefor the entering thereon,

for the us0 of the Comptroller's Deparkmnt, as wellas other appropriatematters,

the following:
"1. Signature

of the herd of the department or otherpsrson responsible for incurring

the expanditurc.c
Wc think it clear from the provisions of Article 32078 that the State ---.- “-- -” “ .,S”” Commission

for the Blind is the head of the Separtment or division

of the ,,V. Alrini nn -4 the State govermnent(StateBoard of Registration for Rrof ss Hatter,139 S.W. (2d) 169; Rainayv . ~a104e, 141 S.11, ?2dj%&%%;:pg T-* (2d] 713)w%hf:r* V* the meaning of Article 4355 and be8rs the reSpo4sibilitg for incurring

the 55 a responsibility incurring expsnditur& oftkhhat deperhnent~ Sevsralopinions

have previously

been writtenby this department upon this subject. The first towhi'ch we referwae rendered December4, 1935 8t the requestof the QraeosRiver Conservation mad Reclamation

District. It was there ruled that the Saud of Directors of said Distriot

couldnot delegate to its agent or a ocxmi+$ee authority

to l pp-ove expenses

incurred

by the Districtso 8s to l uthoriscthe Comptroller to issue a warrant. 1twa* pointedout in the opinionthat the Board coulddelegate purely ministerial or exeautivs

function8

but that specific

authorieation

or approval04 the part of the Boardma8 required before the expenditures becamea lawful charge againstany appropriation of Stats funds. 04 March 24. 1936 this deprtmcnt advisedthe St8te Comptroller that a majorityof the Board of Insuranoe Commissioners

was required

to 8pprove any and all expenditures pertaining

to the various departments of insurance exoeptagainstone particular fund. This fundw8s 8n exception because

the statute

provided

that paymentshouldbe made "upon the aertifioate of the chtirman

of the Board of Insumnce Commissioners."
An opinion

was also renderedto the Comptroller of PublicAccounts04 April 1, 1937, concerning ths TexasUnemployment Compensation

Commission. The Commission

had by resolution

attempted

to delegate

ratherbroad functions to the Assistant

Sxeautivc

Director

to execute

purchase

orders,approm expenditures, etc. The opinion pointedout that some of the things attempted to be 'delegated

wers ministerial

and some required

the exercise

cd' discretion,

end ruled that the lattercould not be delagated to the Assistant

Sxsoutivc

Director* but that the Cmmiasion was required to exeroire

the necensrry

discretion.Hon. Lon Alsup, page 4 (O-5292)

In Opinion

No. O-1126we had befc~eus the question of *ether the Texas Stats Parks Foard might delegate

to its oecretary

the right to approve claima**against** the Stat. appropriation for such board. The ruling was that such authority might not be delegated. An additional suggestion was made in the opinionthatwhile the boardmight not delegate the authcrity to approveclaims to a non-member of the board, it might delegate thie authority

to somemember of the board under rules and regulations to be promulgated

by the board. Ia so far as said opinionexpresses the oonolusion that the boardmay delegateitr discretionary authority

to a member of the board, the sam8 is modifiedto conformto the views herein expressed, for, in our opinion, the principle

of non-delegation

of discretionary fun&ions is just as applicable to a member of **a** board or ootissicn as to a non-member. This authority is vested in t31e

commission

aa **suoh** and not in its members as individuals. Easedupon the~fcregoing authorities,

we conclude

that the State Conrmission

for the Blind is the head of a deputmantvested with discrationay authority

by statute,

that it may delegate purely ministerial

act8 to be performed

but may not delegateitr diaorationuy functions; and that the expenditure

of moneys appropriated to it involves

the sxeroise

of disoretion

or judgment. Fpom your question, we understand

that the Commission desire*to make a generalauthorization for exponditure8,

and delegate **to** one or more of its individual

members,or to its executive secretary,

authority

to approveall expend.&turea for payment

without the neaersity of further (ICtion by a majorityof tha ConnnissionD In our opinion

this cannot

be done, and we therefore

answer your questionin the negative.

Yoursvery truly, ATTORliEYGENEFU,OFTEXAS By /a/ Cod1 C. Cammack Cecil C. Cammack Acsistmt CCCwslhnigw
APPROTED

Id&Y 26, 1943 /s/Gerald C, &UI ATTORN'EYGEKERALOF TEXAS APPHOVED OpinionCommittee ByBVfB Chairman