August 21, 1953
Hon. H. A. Beckwith Opinion NO. s-86
Chairman
Board of Water Engineers Re: Legality of the Assistant
302 West 15th Street Secretary of the Board of
Austin, Texas Water Engineers to certify
orders and other docu-
ments of the Board and to
assume responsibility as
custodJ.anof the files and
Dear Mr. Beckwith: records of such Board.
You have requested an opinion of this office
on the following question:
"This Board desires for you to give us
your opinion as to the legality of the As-
sistant Secretary of the Board certifying
to orders, decisions of record, papers, maps
or other documents. Also, can the responsi-
bility as custodian of the files and records
be delegated to the Assistant Secretary of
the Board?"
Subdivisions 6, 7, and 16 of Article 7477,
Vernon's Civil Statutes, as amended by Chapter 357, Acts
of the 53rd Legislature, 1953, p. 874, provide:
"(6) The Board may appoint such other
employees as may be deemed necessary for
the efficient performance of the duties
authorized and required of it by law.
"(7) . D * The Secretary shall be cus-
todian of all files and records of the Board.
. . .
"(16) Upon the apolication of any per-
son and upon payment of the fees prescribed
therefor in the rules and regulations of the
Board, the Board shall furnish certified copies
Hon. H. A. Beckwith, page 2 (S-86)
of any of its proceedings or other official
acts of record, or of any paper, map or
document filed in the office of the Board,
in connection nith the appropriation~of
water, determination of water rights, or ad-
ministration of water rights. Such certified
copies under the hand of the Chairman or the
Secretary, %nd the seal of the Board shall
be admissible!in evidence in any court or
administrative proceeding, In the same ~manner
and with like effect as the original would
be."
Article 7488, V.C.S., provides:
'The Board shall have power to make all
needful rules for its government and proceed-
ings ; and shall have a seal, the form of
which it shall prescribe."
The 53rd Legislature in the General Appropria-
tion Act provides for the employment of a Business Mana-
ger and Secretary of the Board and an Assistant Secretary
of the Board. The wordy "assistant" is 'universally
defined as one who aids,.helps, or assists, while the
word "deputy" is defined as a person appointed to act
for another;,to substitute; to delegate; an agent; and
in,the absence of any statutory provisions the assistant
never acts officially for the principal. Niall v. State,
129 S.W. 630 (Tex.Crim. 1910). But the fact that a
deautv is described in a transaction as an assistant or
vice versa will not invalidate his acta. 'Pierson v.
State, 180 S.W. 1080 (Tex.Crim. 1915).
In view of the foregoing, the answer to your
question 1~sdependent upon the scope of the employment
of the Assistant Secretary by the,Board of Water Engineers.
If the Assistant Secretary is employed only for the purpose
of aiding or assisting the Secretary of the Board, the
Assistant Secretary would not be authorized to perform
the duties of the Secretary imposed by law. However, if
the employment is for the stated purpose of authorizing
the Assistant to act for the Secretary of the Board and
perform the duties of the Secretary of the Board in the
absence of the Secretary, then such assistant would be
in fact a "deputy" and would be authorized to certify
. . .
Hon. H. A. Beckwith, page 3 (S-86)
orders, decisions of record, papers, maps and other
documents, and any other duty imposed on the Secretary,
including the responsibility of custodian of the files
and records. In other words, the Board of Water
Engineers has the authority to prescribe the duties of
the Assistant Secretary, and such duties may include
those outlined in your request. We are supported in
this conclusion by the provisions of Section 1 of Arti-
cle 3731a, Vernon's Civil Statutes, which provides:
"Any written statement, certificate,
record, return or report made by an officer
of this state or of any governmental sub-
division thereof, or by his deputy or
employee, in the performance of the func-
tions of his office shall be, so far as
relevant, admitted in the courts of this
state as evidence of the matter stated
thereinfis.ubjectto the provisions in Sec-
tion 3.
SUMMARY
The Board of Water Engineers has author-
ityto prescribe the ci-utiesof the Assistant
Secretary of the Board, and such duties may
include certifying to orders, decsTslorn3
of
record, papers, maps and othe~rdocuments, and
in the absence-of the Sec~retaryto'authorize-the
Assistant Secretary to act as custodian of
the files and records.
Yours very truly,
APPKOVED: JORNBEN SREPPERD
Attorney General
J. C. Davis, Jr.
County Affairs Division
Willis E. Gresham
Reviewer
Assistant
Robert S. Trotti
First Assistant
JR:am