Can a Texas county treasurer appoint a deputy who can do everything the treasurer can?

Plain-English summary

The Liberty County Attorney asked whether a county treasurer may appoint a deputy and, if so, whether that deputy may perform every act the treasurer may legally perform. The Attorney General concluded the answer to both is yes.

The opinion first cleared up a point of confusion. Section 83.005(a) of the Local Government Code lets a county treasurer who has no deputy appoint someone, with the commissioners court's approval, to act in the treasurer's place, but only when the treasurer is absent, unavoidably detained, incapacitated, or otherwise unable to act. As the legislative history of that provision showed, its purpose was to keep a county's financial obligations from going unmet when the treasurer (often the only person authorized to handle certain financial tasks) cannot act. That section is about a temporary stand-in, not a deputy.

The appointment of an actual deputy treasurer is governed by chapter 151 of the Local Government Code. Under section 151.001, a county officer who needs deputies, assistants, or clerks applies to the commissioners court for authority to appoint them; the commissioners court sets the number and authorizes the appointments but may not influence who is chosen, and the appointing power stays with the officer who applied. A county treasurer is a county officer for chapter 151 purposes and so may appoint a deputy treasurer when the chapter's requirements are met. Once appointed, a deputy treasurer holds the powers of the principal: as Texas courts have described it, a deputy is a person appointed to act for another, a substitute, delegate, or agent, who may do anything the principal can do and serves as an alter ego of the superior. The temporary-substitute limits in section 83.005 do not apply to a chapter 151 deputy, who may exercise all the treasurer's powers.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

County treasurers (what the opinion held for them): The opinion held that a treasurer may appoint a deputy treasurer through the chapter 151 process and that, once appointed, the deputy may perform any act the treasurer can legally perform.

Commissioners courts (what the opinion held for them): The opinion held that the commissioners court authorizes the deputy appointment and sets the number of positions under chapter 151, but may not influence the choice of any particular appointee, and that the section 83.005 temporary-substitute limits do not constrain a chapter 151 deputy.

Common questions

Can a county treasurer have a full deputy, not just a fill-in?
Yes. The opinion concluded a treasurer may appoint a deputy treasurer under chapter 151, separate from the temporary substitute that section 83.005 allows when the treasurer cannot act.

What can a deputy treasurer actually do?
The opinion concluded a properly appointed deputy treasurer may exercise all the powers of the treasurer, acting as the treasurer's agent or alter ego.

Does the commissioners court control who becomes deputy?
No. The opinion explained the commissioners court authorizes the appointment and sets the number of positions but may not influence the selection of any particular person; the appointing power stays with the treasurer.

Is a deputy limited to times when the treasurer is away?
No. The opinion concluded the "absent, unavoidably detained, incapacitated, or unable to act" limits apply to a section 83.005 temporary substitute, not to a chapter 151 deputy treasurer.

Background and statutory framework

Section 83.005(a) of the Local Government Code provides that in a county where the county treasurer does not have a deputy, the treasurer may appoint a person, subject to commissioners court approval, to act in the treasurer's place, but only when the treasurer is absent, unavoidably detained, incapacitated, or unable to act. The opinion noted the Senate bill analysis of the measure that became section 83.005 (H.B. 1475, 1997), which explained that because the treasurer is often the only person authorized to execute certain financial responsibilities, the bill let the treasurer name a stand-in so the county's obligations could be met on time.

The appointment of a deputy treasurer is instead governed by chapter 151. Section 151.001(a) requires a district, county, or precinct officer who needs deputies, assistants, or clerks to apply to the commissioners court for authority to appoint them; section 151.002 has the commissioners court determine the number and authorize the appointments; section 151.004 bars the commissioners court from influencing the appointment of any particular person; and section 151.003 lodges the appointing power in the officer who applied. The opinion relied on O-4454 (1942), which recognized a treasurer's power to appoint a deputy under the statutory predecessor of chapter 151, and on Naill v. State, 129 S.W. 630, 631 (Tex. Crim. App. 1910) and Bigham v. State, 148 S.W.2d 835, 840 (Tex. Crim. App. 1941), which describe a deputy as an agent and alter ego who may do anything the principal can do.

Citations

Statutory provisions:

• Tex. Loc. Gov't Code Ann. §§ 83.005(a), 151.001(a), 151.002, 151.003, 151.004 (Vernon 1999)

Cases and prior opinions:

• Naill v. State, 129 S.W. 630 (Tex. Crim. App. 1910)
• Bigham v. State, 148 S.W.2d 835 (Tex. Crim. App. 1941)
• Tex. Att'y Gen. Op. No. O-4454 (1942)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0276
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0276.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

August 30, 2000

The Honorable A. J. (Jack) Hartel
Liberty County Attorney
P.O. Box 9127
Liberty, Texas 77575-9127

Opinion No. JC-0276

Re: Appointment and powers of a deputy treasurer (RQ-0224-JC)

Dear Mr. Hartel:

You have asked this office whether a county treasurer may appoint a deputy, and whether such a deputy may perform all acts which the treasurer may legally perform. We conclude that the treasurer may do so, provided the appointment is made in conformity with the employment provisions of chapter 151, subchapter A of the Texas Local Government Code; we further conclude that such a deputy is "a person appointed to act for another, a substitute, a delegate, an agent," and as such "may do anything that his principal can do." Naill v. State, 129 S.W. 630, 631 (Tex. Crim. App. 1910).

As a preliminary matter, you inquire about section 83.005(a) of the Local Government Code, which provides that "[i]n a county in which the county treasurer does not have a deputy, the county treasurer may appoint a person, subject to the approval of the commissioners court, to act in the treasurer's place. The appointed person may act in the treasurer's place only if the treasurer is absent, unavoidably detained, incapacitated, or unable to act." TEX. LOC. GOV'T CODE ANN. § 83.005(a) (Vernon 1999). Section 83.005(a), however, does not address your concerns. The purpose of the section is the appointment of a temporary replacement for the treasurer, not a deputy. As the Senate bill analysis of the measure which became section 83.005 explains, "Currently, in many counties, the county treasurer is the only person authorized to execute certain financial responsibilities. As a result, if the county treasurer is unable to perform these duties, the county's obligations may not be met on a timely basis. H.B. 1475 would authorize the county treasurer, in a county without a deputy county treasurer, to appoint a person to act in the treasurer's place if the treasurer is absent, unavoidably detained, incapacitated, or unable to act." SENATE COMM. ON INTERGOVERNMENTAL RELATIONS, BILL ANALYSIS, Tex. H.B. 1475, R.S. (1997). The person appointed pursuant to section 83.005, in short, is merely appointed to perform certain tasks for the period in which the treasurer is unable to do so. For that period, he or she is "[d]ressed in a little brief authority." WILLIAM SHAKESPEARE, MEASURE FOR MEASURE, act 2, sc. 2, ln. 118.

The appointment of a deputy treasurer is governed by chapter 151 of the Local Government Code. Section 151.001 provides that "[a] district, county, or precinct officer who requires the services of deputies, assistants, or clerks in the performance of the officer's duties shall apply to the commissioners court of the county in which the officer serves for the authority to appoint the employees," TEX. LOC. GOV'T CODE ANN. § 151.001(a) (Vernon 1999) (emphasis added), and further specifies the contents of such an application. The commissioners court determines the number of such appointments to be made, and authorizes the appointments. Id. § 151.002. The commissioners court may not, however, attempt to influence the appointment of any particular person. Id. § 151.004. The power to make the appointments is lodged in the officer who applied for them. Id. § 151.003.

The county treasurer is a county officer for the purposes of chapter 151 of the Local Government Code, and as such has the power to appoint a deputy treasurer if the provisions of that chapter are complied with. See Tex. Att'y Gen. Op. No. O-4454 (1942) (county treasurer had power to appoint deputy under statutory predecessor of chapter 151).

A deputy treasurer, once appointed, has the powers of his or her principal. A deputy is "a person appointed to act for another, a substitute, a delegate, an agent." Naill, 129 S.W. at 631. As distinct from an assistant, a deputy "may do anything that his principal can do." Id. "That one is called a deputy carries with it the fact that he is an alter ego for his superior, being charged with all the duties as well as the responsibilities of his superior, and empowered to perform the acts and discharge the duties of such superior, and to that extent becoming the superior himself in his superior's absence." Bigham v. State, 148 S.W.2d 835, 840 (Tex. Crim. App. 1941).

The statutory restrictions imposed by section 83.005 of the Local Government Code on the temporary substitute for the treasurer, namely that such a person may act "only if the treasurer is absent, unavoidably detained, incapacitated, or unable to act," are irrelevant to the proper appointment of a deputy treasurer pursuant to chapter 151. A deputy treasurer so appointed may exercise all the powers of the treasurer.

SUMMARY

Section 83.005 of the Local Government Code concerns only the appointment of a temporary substitute for the county treasurer when the treasurer is "absent, unavoidably detained, incapacitated, or unable to act." TEX. LOC. GOV'T CODE ANN. § 83.005(a) (Vernon 1999). The appointment of a deputy treasurer is governed by chapter 151 of the Local Government Code. A deputy treasurer properly appointed pursuant to chapter 151 of the Texas Local Government Code may exercise all the powers of the treasurer.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General - Opinion Committee