Untitled Texas Attorney General Opinion

R-581 -, OFFICE OF THEATTORNEY GENERAL AUS~N~ TEXAS PRICE DANIEL ATTORNEYGENERAL June 30, 1947 Hop. John A. Hulen, Chairman,. Texas National Guard Armory Board, Second National,Bank Building, Houston 2, Texas ', Opinion ETo. V-286 Re: Authority~o?~ Chair- man of the Texas National Guard Ar- mory Board to ap- prove for payment all obligations 0r the Board. Dear General Hulen: - Your.,request-for an opinion of this department is substantially as follows: "The Texas National Guard is in the process of reorganization. This reorganization has caused the'Tex%s National.Guard Armory Board to broaden it&field o? operations. As you know it is the duty of the Armory Board to provide armories and other fdailities for ~the units o? .the National Guard. 4 "A ntiber of armories have been rented and are scattered over the State; others, will be rented or construoted. The rental and other charges must be paid by the Armory Board out of appropriations made available for this pur- pose by the Legislature. The number of doou- ments and vouchers submitted to the Comptrol- ler are numerous. The Comptroller requires the approval of at least three members of the Armory Board on each of the documents submit- tea for payment. Due to the faot that the Board Members reside at different places in the State, this requirement causes consider- able delay in the payment of accounts. The Comptroller, when requested to pass these aoouments With the approval only of the Chair- man of the Board, suggested that he would be Hon. John A. Hulen, - Page 2 Opinion NO. V-286 dlaa to do so if such uro~oe;~lreceived the approval of the Attornep . Such pro- cedure, 0r course, would be based on a proper resolution of the Armory Board. “In view of this request of the Comptroller, we enclose herewith copy or a resolution or the Armory Board authorizing the Chairman or the Board to approve for payment all obliga- tions of the Armory Board incurred against the monies appropriated by the Legislature to the different accounts of the Board. “Will you, therefore, please advise whether, in view of, the rovisions of the Armory Board Act (Art. 5890b 7 the Board may authorize the Chairman to approve for payment on behalf o? the Board the documents and oharges against the funds appropriated by the Legislature to the different aocounts of the Armory Board.” The resolution adopted by the Board purport- ing to authorize t,he Chairman of the Board to approve for payment on behalf of the Board various documents and oharges is as follows: “Resolution adopted by-the Texas National Guard ~Armory Board at a regular meeting hela June 6, 1947, in the city of Austin, Texas: Y3.ESOLVED,that the Chairman of the Board of the Texas National Guard Armory ,Boara be, and he is hereby, authorized to ap- . prove for payment on behalf of the Ar- mory Boar& all vouchers, expense acoounts, payrolls, rentals, and. other aoquments which have heretofore been approved by the several members of the Board before submission to the Comptroller o? the State of Texas for payment; that such ap- proval by the Chairman shall constitute the approval of the Board.” Article 5890b, Vernonts Civil Statutes, pro- vides in part as roihis: “Section 1. There is hereby createa the Texas National Guard Armory Board to be com- posed of rive (5) members who shall serve with- Hon. John A. Hulen, - Page 3 Cpinion No. V-286 _- out compensation other than their actual, ne- : cessarg expenses while traveling on the busi- ness of the Board. . . n. . . "The Board shall aot by resolution at a meeting thereof called, and held in accordance with its by-laws or rules.and regulations. Three (3) members of the Board shall con&i- t,ute a quorum for the transaction of business at all meetings and any ao.tion taken by the majority of the members of the Board present at any meeting thereof shall be deemed to be the action of the Board for all purposes; but if four (4) members are present ana voting, an equal vote in both affirmative and negative shall, defeat the proposition. ri. . . "Sec. 2. .The Board hereby created shell be am3 it is hereby constituted a body politio and corporate. IX shall suoceed to the owner- ship of all property of, and all lease and rental contrasts entered into by, the Texas', National Guard Amory Board'that'was hreated by prior statutes ana all of the obligations, aontraatea or assumed by the last mentioned Board with respect to any,such property and contract~s shall be the obligations of the Boaia oreated by this Act. With this escep- Mod, no obligation of said former Board shall be binding upon the Board hereby created. It ,shall be 'the duty of said Boara to have charge of the acquisition, constru+.on, rental, con- trol, maintenance and dperation of all Texas National Guard Armorie$I, including stables, rifle ranges, hangers and all other ~~~$Z~ and equipment necessary or useful in connection therewith, and said Board shall possess all powers necessary and convenient .?or the aocomplishment of such duty, . . ." In the case of Webster, et al, vs. Texas and Paoiric Motor Company, et a$, 166 9. w. (2a) 75, Chief Justice Alexander, speaking for the Supreme Court, stated as r0li0ws: Hon. John A. Hulen, - Page 4 Opinion No, V-286 YIt is a well established rule 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 admin- istrative agenoy, suoh board, bureau, or oom- mission must act thereon as a body at a etat- ea meeting, or one properly called, and o? which all the members of suoh board have no- tice, or of which they are given an opportun- ity to attend, Consent or acquieaoeuce or, or agreement by the individual members Mting separately, end not as a body, or by a number of the members less than the whole aoting collectively at an unscheduled meeting with- out notiae or opportunity of the other mem- bers to attend, is not sufficient. . .” In an Opinion numbered O-5667, dated November 26, 1943, this Department stated as follows: “In the ease of a Board the statutory power or authority is to be exeoutea by the Board as a body, That is to say, at a meet- ing of the Boera duly assembled, end not by the individual and separate action of the members otherwise than as a boay . . . “mere, however, the Board has duly aotea as a boo, it may, by appropriate resolution, authorize the President, or any other officer of the college, to execute the instrument in the name, for and on behalf of the Board.” It will be seen from the foregoing that the Board must act as a body, and consent or acquiesence by the indivudual members acting separately is not su??i- cient. However, if the Board has acted as a body in authorizing the payment of expense acoounts, payrolls, rentals, etc., then it may, by resolution, aeSign@te the Chairman to exeoute the same on behalf of the Board. The construction placed upon the resolution under con- sideration by this department is that the Board does not contemplate approval as a body, but severally; therefore, such resolution would not be in ooniormity with the established rule regulating the affairs of a Board, and your question must therefore be answered in the negative. . Hon. John A. Hulen, - Page 5 Opinion No. V-286 A matter t?omdtted to a State Board UW3t be acted upon as a body at a stated meeting, and the resolution of the National Guard Ar- mory Board delegating authority to the Chair- man or its Board to approve accounts, etc., by said Board would not be sufficient, If the State Board has duly acted as a body, it may, by appropriate resolution, authorize eny or its officers to act for and on its behalf as to specific items covered by such resolu- tion. Very truly yours, ATTORNEY GEIIT4TERAL OF TEXAS Burned.1 Waldrep SW:wb:sh Assistant