OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
May 3, 1939
Honorable Tom L. Beaucheap
Seorettrry 0r State
kubtln, Texas
Dear Sir:
the Searetcry
berore the
the Aaalstant Soorstary of
'\
*(4).--h at tlmos the Aaalstant Soorvttrry Of
State should algn osrtifloatss and other doou-
manta rt8 A,sslstant Secretary of Stat8 and at
other tla.8 am Aotlng Secretary of State, than
when should he sign as Aotlnq awl when aa
Assistant .5.oorotory of State'?"
Honorclble Tom L. tieauohamp, yl:~y 3, 1 e.79, l'ug1~ 2
It will bo observed that the ertlcla of the statute
above referred to provides that the i+snlstcint jeoretory of
State "shall perform all the duties required by lnu to be
performed by the Seorotflry of Stuts rhsn the said Seoratary
of Stats 1s absent or unable to sot for any reason. Suoh
Asslstsnt shall perform ruch other duties ar, shall be rd-
qulrrd of him by the :Yeoratary of Stats....w
By virtue 0r the prorlalons 0r the stutute, the auth-
ority of the Assistant Seoratarp of State to sot at all de-
pends upon the happening or oertain events xesorlbsd by the
Eitatute.
By th. seoond oontlngenoy presorlbed by the statute,
the Aaelstant Seorstary of State le authorized to and rsqulrsd
to perform such duties ae the Seoretory of State shall delegate
to him for performanoe. Under thle eeotion of the statute,
then, the authority of the Assistant Sooretary of State to per-
form a partloular duty depende upon whethsr ths Soorotary of
State has lnatruoted hl!+ to perform suah duty. The full auth-
orlty of the Aealstant Seorstary of State thus to aot arises
rrom the et::tuts lnveatlng him with suoh authority when the
oontlngsnoy mentioned in the statute la met - that is, whan
the authority to perform the partloul,,r aot has been delegated
by the Secretary of State. There 1s no unlawrul dalagatlon ot
authority by the Seoretary of State, ror the Seoretary of State
and the Asalstant Seoretary of State are both oraaturem of the
law. The duty and the authority to aot is an lnoldent cl the
orrioe, and not 8 personal one, and there 1s nothing to ?rohlblt
the lsglslaturs from authorlzlog, am it haa in this aot, the
p0rronnanoa of oertaln a tetim lttaohed to the 0rri0e 0r Soore-
tary of Stats by the Aeslstant Ssoretary of State when the
Secretary of State shall see fit to roqulrs the perfonaanoe of
suoh duty by the.Aaalstunt Seoretary of Stats. Prdfer Y.
Mahnke et al, (Commission of Appeals, Seotlon 8, opinion adopted
by the Ziuprems Court ) 260 S. U. 1031.
On the other hand, hy virtue of the provisions or the
statute, eren though there may be no delegetlon of authorltf by
the Seoretary of State, yet in the event the Sooretary of State
1s absent or unable to aot for any reason, the Assietant Seors-
tary of State 1s authorized by the statutes to perrorm -all ths
Honorable Tom L. Beauchamp, May 3, 19?9, Page 3
dutlse required by law to be performed by the Seoretnry of State.
If the oontlngenoy mentioned ln this partloular aeotlon or the
aot 000urs, the authority of the Asolstant Seoretary or state
to aot la oomplete.
The purpoee or the atatute olted above 1s obviously
to expedite and faoilitate the perfotmanoe of the dutlea lm-
posed by law upon the offloe of Seoretary or State, The aot
should be liberally oonstrued so aa to give lfieot to that pur-
pose. With this purpose in mind, it is the oplnlon of this de-
partment thAt it 1s not neoessary that the Seoretary of State
be absent rroa ths olty before the Asslcttant Seoretsry of State
would be authorized to aot, but, on the oontrary, that his ab-
son08 tram the orrloe or the Secretary or State at the time the
oooaslon ror acting arlsee 1s aufflolent to authorize the An-
slstant Seoretary of State to aot in hls stead. Llkewlee, it
is the opinion of this department that the phrase “unable to
aot ror any reason” ohould be liberally oonstrued, and thct the
inability of the Seoretary or State to aoti a8 therein oontem:
plated, may oonsist ot or be brought about by the volume of
other work oommanding ths attention ot the Yeoretary of State
and preventing him from aotlng in respeot to oertaln duties
or his orrloe, as well as by phyaloal or mental inability to
act.
You are further advised, that, slnoe the aots of
pub110 otfloers are presumad to have been done in the proper
exerolse 0r legltlaate powaro, unless the oontrary be shown, the
raot that the Aaalrtant Secretary of St::te aots in a partloular
matter glrrs rise to the preeumptlon that the oondltlons pre-
sorlbed br the atatute authorizing him to aot have arisen.
Proffer f. Mahnke, olted aboro.
Your’flrst question above quoted la thsretore answered
in the negative.
Your seoond queotlon 1s answered by the discussion
above.
In anawar to your third question, you are: advised that
It 16 theopinion of this deprrtnent that the Asuletant Seorstary
0r State, when authorized by the happening of any or the oondl-
tlona above mentioned to sign oertltlcatee, should sl~n them as
!!onorable Ton L. Baauohamp, May 3, 1939, Page 4
Assletant Seoretary of State. There la DO prorlolon in the statute
lor suoh an olftoer aa "Aotlng Seoretory of State." If the algna-
ture la aa haalstant Seoratary of State, the prarumptlon above
rafarred to would attaoh; but it la doubtful that auoh a presump-
tlon would attaoh td the aot of an aotlng Saoretary of State where
no suoh orrloe is prorlded ror by law.
In anmer to your fourth question, you are advised that
In our opinion whenever ths Asel&xmt Beoratnry of Stnte may af-
fix his signature to any dooument by vlrtua of the happening of
the oondltlom above rnantloned, he ahould sign 44 Assistant
Ssoretary of Stats, and in no lmtanoe should ho elgn an Aotlng
Saoratary or Stats.
Xe trust that this opinion will annwer all of the in-
qulrias to your entire satl8faotlon.
ATTORNEYSfiNEEW. ;F TEXAS
Rlohard VI. Falrohlld
Anslatant
RW:FL
APPROVED:
AT'I'ORNEY
w----- GE RAL OF TEXAS