THE ATTORNEY GENERAL
OF' TEXAS
Hon. Fred Hartley Opinion No. O-1507
Ass1 st ant Cr imlnal Her (a) Is-it legal for the Assistant
District Attorney County School Superintendent to sign the
Waco, Texas Superintendent’s name to vouchers issued
by the trustees of a common school dis-
tr ict?
(b) May the Superintendent give his As-
sistant power of attorney to sign such
Dear sir: vouchers?
We have received your letter dated November 18, 1939,
wherein you request the opinion of this Department upon the above
stated questions.
The office of County School Superintendent is not a
constitutional office, but is provided for by statute, and the
duties of the County School Superintendent generally are such as
his title indicates. He is in truth superintendent of the county
public schools; such schools are managed, controlled, operated
and maintained under his superintendance. Though in a sense a
county officer, and called Vounty Superintendent,” he is in fact
the officer of the State. Webb County vs. Board of School Trus-
tees, 65 S.W. 878.
Article 2693 of the Revised Statutes of Texas describes
the general duties of the County Superintendent as follows:
“The county superintendent shall approve all vouch-
ers legally drawnagainst the school fund of his county.
He shall examine ail tne contracts between the trustees
and teachers of his county, and if in his judgment,
such contracts are proper, he shall approve the same;
provided, that in considering any contract between a
teacher and trustees he shall be authorized to consider
the amount of salary promised to the teacher. He shall
distribute all school blanks and books to the officers
and teachers of the public schools, and shall make such
reports to the State Superintendent as may be required
by that officer. He shall discharge such other duties
as may be prescribed by the State Superintendent.”
The statutory provisions with respect to an Assistant
County Superintendent are meager. Article 2700, Revised Statutes
of Texas, dealing primarily with the salary and expenses of the
county school superintendent, reads in part as follows:
Hon. Fred Hartley, Page 2 (O-1507)
“The county board of trustees may make such fiir-
ther provisions as it deems necessary for office and
traveling expenses for the county superintendent and
any assistant he may have; provided that expenditures
for office and traveling expenses shall not exceed
three hundred dollars per annum, and the county board
of trustees may make provisions for the employment of
a competent assistant for the county superintendent
who shall, in addition to his other duties, act as
attendance officer; and said board is hereby author-
ized to fix the salary of such assistant and pay the
sane out of the same funds from which the salary. and
expenses of the county superintendents are paid; . ..I’
Although no express authority to employ an assistant
county school superintendent is conferred by the statute, either
on the board or on the superintendent, it is held that a reason-
able and necessary construction leads to the conclusion that the
superintendent is vested with the power to select one. There
are no provisions in the statutes describing the duties of an
assistant county superintendent, except that he is to act as at-
tzcllr o,ff icer 9 and he is not required to furnish bond or take
. Neeper vs. Stewart, (Civ.App.) 66 SoW.(2d) 812.
We quote from Tex,JurO, vol. 34, pp- 601 and 607, as
follows:
“The terms ‘deputy’ and @assistant’ are not synony-
mous, for there is a recognized distinction between them.
A deputy is a person appointed to act for another, a sub-
stitute 9 a delegate o an agent; while an assistant is one
who helps, aids or assists. tAssistant’ is the more com-
prehensive term. A deputy may be said to be an. assist-
ant, but public officers have assistants who are not depu-
ties. 1AssistantP includes those who aid, whether sworn
or not sworn- while pdeputy s implies only the sworn class.
Again as a rule a deputy may do anything that can be
done ?I, his principal, while an assistant’s duties are to ”
be performed in connection with and under the direction
of the principal. Authority given’an officer to appoint
a deputy does not empower him to appoint, or to create
the office of an assistant. But the fact that a deputy
is described In a transaction as an assistant, or vice
versa, will not invalidate his acts.” Nail1 vs. State,
I.29S.W. 630; Neeper vs. Stewart, (Civ.App.1 66 S.W.(Zd)
&G&; Cook vs. Knott, 28 Tex. 85; Rose vso Neuman, 26 Tex.
0
“The duties of an assistant, as distinguished from a
deputy, already noticed, are to be performed in connection
with and under the direction of the principal. In the ab-
sence of a statutory provision to the contrary, the assist-
ant never acts for the principal,~and his capacity is more
clerical than otherwise.t’
. .
Hon. Fred Hartley, page 3 (O-1507)
In the case of Nail1 vs. State, 129 S.W. 630, the appel-
lant was convicted in the District Court of El Paso County, Texas,
of bribery of the assistant city attorney of El Paso, Texas.
Judge McCord, in his opinion, wrote the following:
“We are therefore confronted with the proposition
whether *assistant attorney’. and ‘deputy’ means the
same thin In the case of United States vs. Adams (C.C.)
24 Fed. 3ei it was stated that an ‘assistant, as used
in the Act & March 14, 1864, providing for the appoint-
ment for an additional Assistant Secretary of the Treas-
urer, means one ‘who stands by and helps or aids another.
He is not a deputy, and cannot, therefore act in the
name of and for the person he assists, but only with him
and under his direction, unless otherwise expressly pro-
vided by law. I An assistant does not mean a deputy.
Clerks and other public officers have assistants who are
not deputies, though a deputy is an assistant. The word
cassistantf is more comprehensive than the word ‘deputy,’
including those who aid, whether sworn or not sworn
while ‘deputy’ implies only the sworn class. See Nilison
vs. Stevenson, 22 Ky, 271. There seems to be a distinction
recognized by all authorities, and it will be found in
every standard dictionary, between the word ‘assistant’ and
the word ‘deputy. 1 They are not recognized as synonymous
terms. The lassistantl is universally defined as one who
aids, helps, or assists, while the word ‘deputy’ is defined
to be a person appointed to act for another, a substitute,
a delegate, an agent. In the absence of any statutory pro-
vision the assistant never acts officially for the princi-
pal. 3 6 is not required to be sworn, nor to give bond.
His capacity is more clerical than otherwise, while a deputy
has a more enlarged meaning, and may do anything that his
principal can do. Our law authorizes and creates the office
of deputy sheriff and deputy clerk, and they are authorized
and empowered to do anything that can be done by the princi-
pal. It
The County School Superintendent, being in fact a State
officer, cannot delegate his public duties to others, which duties
are judicial In their nature, and call for the exercise of reason
or discretion, as these duties are regarded as a part of the public
trust assumed by him. Nail1 vs. State, 129 S.W. 6 0; Green vs. San
Antonio Water Supply Company (Civ.App.) 193 S.W. 2 53; Navarro
county vs. Tulles, (Civ.App.3 237 S.W, 982; Horne Zoological Arena
Company vs. City cC Dallas, (Civ.,App.) 45 S.W.(2d) 714.
Mechem, on Public Offices and Officers, at page 370, has
this to say about delegation of mechanical or ministerial dutiesr
. .
‘Hono Fred Hartley, page 4 (O-1507)
“Para - 568. Mechanical or ministerial Duties
may be delegated.--Where, however, the question arises
in regard to an act which is of a purely mechanical;
ministerial or executive nature, a different rule ap-
plies. It can ordinarily make no difference to any one
by whom the mere physical act is performed when its per-
formance has been guided by the judgment or discretion
of the person chosen. The rule, therefore, is that the
performance of duties of this nature may, unless express-
ly prohibited, be properly delegated to another.
“Where, however, the law expressly requires the act
to be performed by the officer in person it can not,
though ministerial, be delegated to another.”
Throop, on Public Officers, at page 511, defines a min-
isterial act:
’ “A ministerial act may perhaps be defined to be one,
which a person performs in a given state of facts, in a
prescribed manner, in obedience to the mandate of legal
authority, without regard to, or the exercise of, his own
judgment upon the propriety of the act done.”
We quote from your letter8
“Mr, Batson (County Superintendent of McLennan
County) also received a letter from the State Depert-
ment of Education giving their opinion that it was proper
for his assistant to sign said vouchers, as it was prac-
tically impossible in the larger counties for the super-
htendent to be present at all hours that people might come
in to have vouchers approved. At any rate, it seems to be
the custom thr&ghou,t the state for the assistant in the
off ice to aua ove such voucm and in this office such
has been the &stom for the pase twenty-four years.
“lf you recall Article 2690 of the revised civil stat-
utes the County Superintendent is required to spend four
days cut of the week visiting the schools in session in his
county. Therefore, someone must act in his olace in hj&
&senca end it is our opinion that even though there is no
specific statutory provision givlng an assistant such au-
thority, the legislature must have intended for someone to
fulfill that duty.” (Parenthesis and undarscorlng ours.)
The signing of the vouchers by the Assistant County Su-
perintendent under the circumstances as set forth in your letter
carries with it the authority to approve such vouchers. The ap-
proval or disapproval of a voucher may legally be done only by
the County Superintendent in person*
Hon. Fred Hartley, page 5 (O-1507)
The ElpProval of all vouch PS leaallv drm as provided
in Article 2697. suora. is not a u~elv~ministerial. non-discre-
tionary act, bet is. oni that requires the exercise of judgment
and discretion. Tn the case of Palmer Publishing Co. vs. Smith,
109 S.W.(2d) 158, Commissioner Martin, speaking for the Court,
wrote:
“The clause ‘legally drawn a ainst the school fund
of the county, 1 as used in Art. 2%93, supra undoubtedly
confers upon hi@ authority to decide as to jhe legality
of the form of such vouchers. If we consider this lan-
guage in connection with the ‘educational set-up’ of each
county, we have no doubt it goes further than this and
authorize ah inquiry by him into the legality of the in-
debtedness represented by such voucher. We need inquire
no further than whether or not he can pass his judgment
on any one or more of the elements which go into the mak-
ing of a ‘legally drawn’ voucher and from such tdecide~’
its legality. We think his rela J ion to the school fund
is somewhat analogous to that of a county auditor with
respect to county funds.” .-
In view of the foregoing authorities you are respect-
fully advised that it is the opinion of this Department that both
.of your questions should be answered in the negative.
However, as a limitation and further explanation of the
above conclusion, if the County Superintendent first approves the
vouchers and then instructs his assistant to sign his (the County
Superintendent’s) name, this presents a different situation. The
mere physical act of signing the name of the County Superintend-
ent to the vouchers does not require the exercise cf judgment or
discretion on the part of the assistant; but is purely a mihister-
ial or mechanical act which can be delegated by the Couhty Super-
iutendent .
Trusting that the above satisfactorily disposes of your
inquiries, we remain
APPROVED, DEC 7, 1939 Yours very truly
/s/ Gerald C. Mat-m ATTORNEY GENERALOF TEXAS
ATTORNEY GENERALOF TEXAS By /s/ D. Burle Davies
D. Burle Daviss, kssistant
APPROVED:OPINIONCOMMITTEE
BY: BWB, CHAIRMAN
DBD:pbp :wb