January   14,    1972



Hon. Clyde Whiteside                         Opinion No.    M- 1042
Administrator,  Interstate
   Parole Compact
Board of Pardons and Paroles
Room 501
John H. Reagan Building                      Re: Authority of Board of Pardons
Austin, Texas     78701                          and Paroles to employ and
                                                 pay two Deputy Compact Ad-
Dear Mr. Whiteside:                              ministrators

       You have requested an opinion from this’office as to whether or
not the Comptroller can pay your two Deputy Compact Administrators,
each, $600 annually, under the provisions of the current general
Appropriations   Act (S. B. 11, R. S., as amended by S. B. 7, ‘1st C. S.,
both of the 62nd Leg. , 1971).

        At pages III-104 and 105 of the Appropriations Act is the appro-
priation to the Board of Pardons and Paroles; we copy the relevant
portions:

                  “BOARD OF PARDONS AND PAROLES

                                         For the Years Ending
                                         8-31-72      8-31-73

            “4.   Salaries of Inter-
                  state Compact
                  Administrators
                  Association Mem-
                  bers                   $2,400             $2,400
            11
             . . ~                                     (at page 111-104)




                                    -5097-
Hon. Clyde Whiteside,      page 2         (M-1042)




             “Out of Item No. 4, Interstate Compact Ad-
             ministrators   Association Members, the Board
             of Pardons and Paroles is authorized to pay in
             addition to regular salaries,  the Compact
             Administrator   $1,200 annually and the two
             Deputy Compact Administrators      $600 each an-
             nually.
              I,. . . 11
                                                     (at page 111-105)

        The nature of the duties of the two “Deputy Compact Administrators”
 is to serve with the Compact Administrator           as members of the Parole
 and Probation Compact Administrators          Association,   which meets once a
 year to vote upon matters of policy and proposals for revisions in the
 rules and regulations that may arise during the year.           The Association,
 however, exercises no sovereignty.          Under the Compact Rules and
 Regulations,     the Compact Administrator      is empowered to appoint two
 deputies to assist him and to serve as members of the Association.
 The Compact Administrator         is the responsible officer for handling the
 administration     of the compact between his state and other contracting
 states, and he serves as the state’s representative         in the Parole and
 Probation Compact Administrators’          Association.    According to your
 statement of facts, the Deputies work in assisting the Administrator            in
 the supervision of out-of-state      parolees involves correspondence      and
 periodic interviewing of the parolees and collecting information as to
 their condition and progress in the community, all of which are purely
 ministerial    functions.   The ultimate judgment and decision making is
 in the Administrator.       See the Handbook on Interstate Crime Control
‘(1966), published by the Council of State Governments,           pgs. 6-7.

       Under Article 42.11, Code of Criminal Procedure of Texas,
Section 5, the Governor is authorized to appoint an Interstate Parole
Compact Administrator     to “promulgate such rules and regulations as
may be deemed necessary to more effectively carry out the terms
of this Compact. ” Texas thereby became a member of the compact,
which by its rules provides for the appointment of the two deputies.
Furthermore,    Section 11, Article IV, Constitution of Texas, creating
the Board of Pardons and Paroles, Is additional pre-existing    law
supportlng the Legislature’s   appropriation.




                                      -5098-
Hon. Clyde Whiteside,     page 3         (M-1042)


        We do not construe the appointment of the “Deputy Compact Ad-
ministrator”    to constitute him a “genera1 deputy” or public officer with
quasi-judicial    duties and matters,    but rather as an assistant to whom
is delegated certain ministerial      functions in connection with the adminis-
tration of the compact.      They exercise no sovereign powers as such.
The Compact Administrator        is a public officer.    As an abstract proposi-
tion, some courts have held that a public official has the necessary
implied authority to appoint sufficient deputies to perform the duties of
his office. See 43 Am. Jur. 219, Public Officers, Sec. 461, citing
authorities,   including Wines v. Garrison,       190 Cal. 650, 214 P. 56
(1923), 26 A. L. R. 1302; McGrain v. Daugherty, 273 U.S. 135 (1927),
50 A. L. R. 1. On the other hand, it is held that express legis,lative
authority is essential to the appointment of a “general deputy” to whom
quasi-judicial   duties are to be delegated.      See State Tax Commission v.
Katsis, 90 Utah 406, 62 P,Zd 120, 107 A. L. R. 1477, (1936).

        If it is entended that the two Deputy Compact Administrators    are
to be “general deputies” in the sense that they are to be public officers
exercising sovereign powers and quasi-judicial     duties, then express
legislative authority so designating them should be sought.

       The real question here presented is whether they are entitled to
the compensation provided for them. They have apparently in good
faith exercised their duties under color of a known and valid appoint-
ment and are at least deputies de facto and are entitled to their
compensation for services rendered.        See 47 Tex. Jur. 2d 306, Public
Officers, Sec. 251; p0 324, Sec. 263. Their acts will be upheld as
valid as far as the public or third parties are concerned and may not
be collaterally    attacked. 47 Tex. Jur. 2d 324-325, Public Officers,
Sec. 264; 67 CJS 452, Officers, Sec. 154. The fact that a deputy is
erroneously     denominated as an assistant,   or vice versa, will not
invalidate his acts. 47 Tex. Jur. 2d 296, Public Officers, Sec. 241,
and cases cited in footnote 12.

        It is our opinion that. the two Deputy Compact Administrators
were entitled to be employed and paid the compensations      provided by
the Legislature    in carrying on their duties in connection with the
Interstate Compact Administrators        Association.




                                      -5099-
Hon. Clyde Whiteside,    page 4         (M-1042)




                                  SUMMARY

                  Under the provisions of Senate Bill 11, Regular
              Session, as amended by Senate Bill 7, of the Special
              Session, 62nd Legislature,  1971, the Board of
              Pardons and Paroles had the authority to employ
              and pay two Deputy Compact Administrators,     each
              $600 annually.




                                                   enera   of the State of Texas

Prepared    by John H. Banks
Assistant   Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman

John Reeves
Roland Allen
Bob Gauss
Bob Lattimore

SAM MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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