The 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