Untitled Texas Attorney General Opinion ( 1943 )

.
Honorable Geo. I-I.
Sheppard
Comptroller of Public Accounts
Austin, Texas
Dear Mr. Sheppard: Opinion No. O-5366
Rer Whether or not the Board
of Regents of a State
institutionmay delegate
to one of its members
the power to give the
advance written consent
to an employee to travel
outside the State, and
to approve the expense
acoount of such employee
for payment.
You make the following request for an opinlonr
"Section 6 of House Bill No. 272, Acts of
the'RegularSession of the Forty-seventhLegls-
lature, which is the General AppropriationBill
for EducationalInstit~utions of Higher Learning,
reads, in part, as follows:
"'No traveling expenses shall be in-
curred by Board Members, heads of ln-
stitutions,or'by any employee of any
of the schools, or other agencies
named therein, inside or outside of
the boundaries of the State of Texas,
except for state's business, and no
travel shall be performed outside the
state except upon the advance written
consent of the sohool’s board of re-
gents or directors,'
"May the Board of Regents either by minutes or
resolution delegate to one of Its members the
power to give the advance written consent to an
employee to travel outside the state and to
approve the expense account of such employee
for payment?"
.
,-
Honorable Geo. H. Sheppard - page 2 - (O-5366)
Your inquiry should be answered in the negative.
Boards such as you mention are legal entities and
are required to function as such. As such entity, the board
functions precisely as an individualState officer functions
-- personally.
It has several times been ruled by this Department
that such boards may not function by individual action, but
may function only in the orderly way of board proceedings.
In Opinion No. O-1126 this departmentheld that the
Texas State Parks Board had no authority to delegate its pow-
ers to another, but that it could perform its duties only
through board action.
In Opinion No. O-5292 this departmentheld as follows:
"From your question we understand that
the Commission (State Commission for the
Blind) desires to make a general authoriza-
tion for expendituresand delegate to one or
more of its individualmembers or to Its exeo-
utive secretary authority to approve all
expendituresfor payment without the neces-
sity of further action by a majority of the
Commissione In our opinion this can not be
done anh we therefore answer your question
in the negative."
In Opinion No. O-5333 we held that the Board of
Control may not delegate to another the authority to ap-
prove a voucher claim for the issuance of a warrant for
payment.
The courts have also held the same thing, the latest
decision perhaps being Webster et al v. Texas & Pacific Motor
TransportationCo., et al, 166 S. W. (2) 75, where Mr. Chief
Justice Alexander thus discusses and announces the rule:
"It Is a well establishedrule in this State,
as well as in other States, that where the
Legislature has committed a matter to a board,
bureau, or commission,or other administrative
wmw, such board, bureau, or commission must
act thereon as a body at a stated meeting, or
one properly called, and of which all the
members of such board have notice, or of
which they are given an opportunity to
attend. Consent or acquiesoenceof, or agreement
Honorable Geo. H. Sheppard - page 3 - (O-5366)
by the individualmembers acting separately,
and not as a body, or by a number of the
members less than the whole acting colleotive-
ly at an unspheduledmeeting without notice or
opportunityof the other members to attend, is
not sufficient.+ * *.
"The purpose of the above rule, which re-
quires the board to act as a body at a regular
meeting or at a called meeting, upon proper
notice,,is to afford each member of the body
an opportunityto be present and to impart to
his associates the benefit of his experience,
counsel, and judgment, and to,.bringto bear
upon them the weight of his argument on the
matter to be decided by the Board, in order
that the decision, when finally promulgated,
may be the composite judgment of the body as
a whole.
m * * * . Merely Indulging'the presumption
of continuous session under these circumstances
would not solve the problem of affording a reason-
able opportunityto all members to be present.
We are of the opinion that the applicationwas
not passed on by the Commission as a body, in
the manner contemplatedby law. * * *'
The duties imposed, and the powers conferred
by law upon public officers and boards are personal --
a trust -- and may not be delegatedby~thetnto another,
except, of course, In those instanceswhere the statute
expressly permits another'to perform them, as in the
familiar oase of a deputy. Even deputies do not perform
such duties through delegationby their superior, but in
virtue of their own power under the statute.
Very truly yours
ATTORNEY GENERAL OF TEXAS
APPROVED JUL 18, 1943
/s/ Ocie Speer
/S/ Gerald C. Mann
BY Ocie Speer
ATTORNEY GENERAL OF TEXAS Assistant
APPROVED
OPINION
OS-MR-ELB COMMITTEE
By B.W.B.
Cbairman