Untitled Texas Attorney General Opinion ( 1969 )

1
August 1, 1969
Honorable James E. Barlow Ooinlon No. M-441
District Attorney
Bexar County Courthouse Re: May the Commissioners
San Antonio, Texas 78204 Court pay the premium
for the errors and
omissions Insurance
reaulred bv H.B. No.
1134, Acts"&& Leg.,
1969, R.S., ch. 561,
Dear Mr. Barlow: p. 1711?
You have requested the opinion of this office upon
the above captioned matter.
House Bill No. 1134, Acts 61st Legislature, 1969,
Regular Session, chapter 561, page 1711, amends Article 1937,
Vernon's Civil Statutes. Sections 4 and 5 of House Bill 1134
read as follows:
“Sec. 4. Each county clerk shall obtain
an errors and omissions Insurance policy,
covering the county clerk and the deputy or
deputies of the county clerk against liabllltles
incurred through errors and omissions in the
performance of the official duties of said county
clerk and the deputy or deputies of said county
clerk; with the amount of the policy being In an
amount equal to a maximum amount of fees collected
in any year during the previous term of office
Immediately preceding the term of office for
which said Insurance policy is to be obtained,
but In no event shall the amount of the policy
be for less than Ten Thousand Dollars ($10,000).
"Sec. 5. The premiums for the bonds and
the errors and omissions policies required by
this Act to be given, or to be obtained, by the
county clerk of each county shall be paid by
the Commissioners Court of the county out of the
general fund of the county as additional compensa-
tion for the services of the county clerk and
-2188-
Hon. James E. Barlow, page 2 (M-441)
which additional compensation shall be cumulative
of and fiic7to all other compensation presently
or hereFfft% authorized for said county clerk."
Any extended discussion of the legal authorities
pertaining to the authority of the Commissioners Court to pay
the premiums for the errors and omissions insurance in con-
formity with the above quoted provisions is pretermitted by
prior holdings of this office in Attorney General's Opinions
c-506 (1965) and c-607 (1966). In those opinions, this office
had under consideration the validity of Section 4 of House
Bill No. 125, Acts 59th Legislature, 1965, Regular Session,
chapter 456, page 941, which also amended Article 1937, Ver-
non's Civil Statutes. That Section reads as follows:
"Each county clerk shall obtain an errors
and omissions Insurance policy, if the same be
available, covering the county clerk and the
deputy or deputies of the county clerk against
liabilities Incurred through errors and omissions
in the performance of the official duties of said
county clerk and the deputy or deputies of said
county clerk; with the amount of the policy being
In an amount equal to a maximum amount of fees
collected in any year during the previous term of
office immediately preceding the term of office
for which said insurance policy is to be obtained,
but in no event shall the amount of the policy be
for less than Ten Thousand Dollars ($10,000).
The premiums for said insurance shall be paid out
of the funds of the ctunty by the Commissioners
Court of said county.
In Opinion c-506 this office held that Section 4 of
Article 1937 as amended by House Bill No. 125 contravened the
prohibition of Sections 51 and 52 of Article III of the Consti-
tution of Texas. This holding was predicated upon the principle
that counties are not responsible for the misfeasance or wrong-
doing of its officers and agents, and the use of public moneys
to insure against losses for which the county is not responsible
would be a grant of public money within the meaning of the above
mentioned sections of our Constitution. This adhered to the
same principles in holding in Opinion c-607 that the county
could not pay the short term cancellation premium on an in-
surance policy which had been obtained by a county clerk prior
to our having held Section 4 of Article 1937 unconstitutional.
The present statute is subject to the same constitutional
-2189-
- .
Hon. James E. Barlow, page 3 (M-441)
infirmities pointed out and made the basis of the holding In
the two prior opinions above cited.
Although Section 5 of House Bill 1134 recites that
the payment of the premium for the errors and omissions in-
surance shall be considered as additional compensation to
the county clerk, we are nonetheless convinced that such use
of public funds falls squarely within the prohibition of
Sections 51 and 52 of Article III of the Constitution of
Texas. This recitation does not alter the fact that public
moneys are being used to accomplish an unauthorized purpose;
that is, to discharge a liability that is not the responsibility
of the county. Those purposes which the Legislature is pro-
hibited from accomplishing directly may not be accomplished
indirectly.
Therefore, upon the basis of Attorney General's
Opinions c-506 (1965) and c-607 (1966), you are hereby ad-
vised that the Commissioners Court cannot pay the premium
for the errors and omissions insurance provided by House Bill
No. 1134, Acts 6lst Legislature, 1969, Regular Session, chapter
561, page 1711.
SUMMARY
Section 5 of H.B. 1134, Acts 6lst Leg., 1969,
R.S., ch. 561, P. 1711, is unconstitutional insofar
as It authorizes the Commissioners Court to expend
public money for payment of premiums to insure the
public against the errors and omissions of the
county clerk and his deputies. Attorney General's
Opinions C-506 (1965) and ``607 (1966).
Very/truly youys,
Prepared by W. 0. Shultz
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
-2190-
Hon. James E. Barlow, Page 4 (M-441)
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bill Allen
Malcolm Quick
John Banks
Z. T. Fortescue
W. V. GEPPERT
Staff Legal Assistant
HAWTHORNE PHILLIPS
Executive Assistant
- 2191-