Untitled Texas Attorney General Opinion ( 1947 )


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  • PRICE  DANIEL
    ATTORNEY GENERAL
    September 18, 1947
    Hon. C. A. Pounds              opinion Roe.V-381
    County Attorney
    Chsmbers County                Re:   Legality of certain
    Anahuac, Texas                       sales to be made by
    the county auditor.
    Dear Sir:
    i,                Your request for an opinion from this office
    on the above subject matter is, in pert, es folSows:
    .?
    9s    lt illegal for a County Audl.tor
    to:
    Sell services to the County--
    such as telephone services.
    Sell Officer's Bonds to County
    Officers.
    Sell material end supplies to
    the County--such as electrical
    equipment.
    .n
    4.    To pay a Brother-in-lawfor ser-
    vic,esrendered to the County.
    "5. Sell County Insurance on County
    Rmployees; County Buildings, Pub-
    lic Liability Insurance on County
    owned trucks.
    In answer toour'request for additional lnfor-
    mation, you furnished us the following:
    "Relative to question Ro. 1:
    "So far as I know, the County Auditor is
    the owner of the local telephone exchange, end
    has been for e number of years. However, his
    son is now assisting In the~operationof the
    business. What authority he exercises in the
    management of the business or whet financial
    Interest he has, if any, I em unable to say.
    4fz-2
    Hon.   C. A. Pounds - Page 2   (V-381)
    This is the only telephone exchange lo-
    cated in the town of Anahuac, Texas.
    "This local telephone exchange fur-
    nlshes telephone service to the county.
    The telephone company bills the county
    each month for the amount of services
    furnished during the month. The Auditor
    ,epprovesthese accounts just_es he does
    any other account payable by the county.
    As owner of the telephone company,he
    also accepts payment of these accounts
    by the county.
    "Relative to officers official bonds:
    VThe County Auditor is the repre-
    sentative of a bonding company who acts
    es surety for the county officers. .The
    Auditor prepares the bonds and collects
    the premium thereon from,the officers
    or charges the amount to the proper fund.
    ..~ -.
    _.
    ~..I
    --                   "The bondKof~'the Sheriff-tax esses-
    sor-collector,County Judge, County-Dis-
    trict Clerk and County Attorney are paid
    for out of the fees of office. The bonds
    for the County Treasurer, Auditor and
    County Commissionersare paid out of the
    General Fund.
    "Relative to question MO. 5:
    "It seems that the county is ettempt-
    lng to carry some sort of a modified form
    of Compensation Insurance on Its employees.
    This was done before I came into office
    end I have never been consulted on the
    matter. I have recently learned that e
    year or so ego the county entered into an
    agreement  with an insurance company to
    Insure the employees of the county against
    tijuryvhlle in the course of their emploY-
    ment vlth the county. It seems that this
    was done by means of a rider attached t0 a
    standard compensation Insurance form. 1
    em advised that the county end the lnsur-
    ence company knew at the time the agree-'
    ment was made that the county could not
    legally cover their employees with regu-
    lar compensationinsurance. However, out
    ,
    Hon. C. A. Pounds -Page 3    (V-381)
    ..   463
    of the Cburts desire to protect the county
    employees from loss from Injury, this e-
    greement was made. The insurance company
    agreed to pay the employee, in case of in-
    jury, in same .inenuer
    end in the same amounts
    es are provided under re&uler compensation .*
    insurence~.
    "This insurance is paid for pertly out
    of the Genepal Fund and pertly out of the
    Road and Bridge Fund.
    "The auditor represents the company    _
    'thatwrites the policy, and he approves
    the claims end ticcepts'thepayment of same.
    :
    "Thencounty is 'carryingregular public
    liability and property.dsmageinsurance on
    county owned and operated equipment. This
    insurance covers damages to persons and pro-
    perty oocesloned by the operation of county
    owned trucks by county .employees. The pre-
    mium on this insurance is paid out of the
    I_   Road and Bridge pund.~ .~
    :
    "The Auditor re&esents this company
    and handles the claims In the manner es he
    does the insurance~forthe employees~.
    "I am unable to say upon what euthor-
    lty the court relies to expend county funds
    for these purposes. I would like to know
    whether or not the Court has legal euthor-
    ity to expend county funds for such purposes."
    Article 1649, V.C.S., provides:
    "The audltcir&ail, within.twenty days
    of his appointment, and before he enters upon
    the duties of:hls office, make e bona with
    two or more good and sufficient sureties, in
    the sum of five thousand dollars, payable to
    the county judge, conditionedfor the faithful
    performance of his duties, to be approved by
    the commissionerscourt. He shall also take
    the official oath and an additional one.in
    writing, stating that he Is in every way quali-
    fied uivitic the provisions'endrequirements of
    this title, and~glving fiillgthe positions of
    ````~Hon. C. A. Pounds - Page 4   (v-381)
    private or public trust he has heretofore
    held, and the length of service under each.
    He shall further Include in his oath that
    he will not~personallgbe interested in
    any contract with the counte." (Emphasis
    ours)
    We quote the following from American Indem-
    nity Company v. Red River National Bank in Clarksvllle,
    132 S.W. (26) 473:
    "Article 1645 provides that in cer-
    tain counties 'there shall be biennially
    appointed en auditor of accounts end fi-
    nances, the title of said officer to be
    county auditor.' Article 1648 prescribes
    the qualificationsrequired of such offi-
    cer. Article 1649 requires that he shall
    take the regular oath of:office and e
    special oath, and shall execute a bond in
    the sum of $5,000 conditioned for the
    faithful performence of his duties. . . .
    i
    1.~ ..-   -.                      "He la by the statute made en officer
    -.            of the count in whom Is vested th
    xhority and    is made his duty to &iiine
    and if found correct to approve the tax
    collector's reports end stamp his approval
    thereon. . .' (Emphasis oups)
    In view of the foregoing, it is our opinion
    that the county auditor Is "an officer of the county"
    and subject to the provisions of Article 373, V.P.C.,
    ' which reed es follows:
    "If any officer of any county, or of
    any city or town shall become in any msn-
    ner pecunlarlly interested in tiy contracts
    made by such county, city or toWn, through
    its agents, or otherwise, for the construo-
    tlon or repair of any bridge, road, street,
    alley or house, or any other work undertaken
    by such county, city or town, or shall be-
    come Interested in any bid or proposal for
    such work or in the purchase or sale of any-
    thinn made for or on account of such county,
    city or town, or who shall contract for or--
    receive any money or property, or the re-
    presentative of either, or any emolument or
    i
    -,
    Hon. C. A. Pounds ,+-Page:
    5     (v-381)               4165
    advantage whatsoever in considerationof
    such bid, ~proposal
    sale he shell be ;i``?``"~e~ty
    E&ore    than five hundred dollars." (Rm-
    phesis .ours)
    ``III
    constrting the Article 373, the Court held
    insthe case of Rigby v. State, 27 Cr. R. 55, 
    10 S.W. 760
    ,
    thatthis Article inhibits any officer of e county from.
    ~enterlng into, on account of himself, any kind of finan-
    cial transection with the county. We quote the follow-
    ing from said case:
    "It is contended by the defendant that
    .   the article of the Penel.Code above quoted
    does not inhibit a.county officer from sell-
    lng propertyto thecounty, unless such pro-
    perty ves made for or on account of such
    &our&y; that the word 'made,' in said arti-
    cle, refers to the word.*enything,1and not
    to the words':'purchaseor-sale.' We do not
    agree to such construction of the article.
    We edmlt that the language of that portion
    of the saldartlcle, when consideredwithout
    reference to the,context, or withoutinquiry
    es to the legislative intent, would warrant
    the Interpretationcontended for by defend-
    ant; but when viewed in connectionwith the.~
    context, end with reference to the purpose
    which the legislature intended to effect by
    the'enactment of the statute, such an lnter-
    pretetion would; In our judgment,be too re-
    stricted, if not strained end unreasonable.
    Manifestly, the legislature, in.enactlng the
    statute,.intendedthereby to.protect coun-
    Hahncities, en+ towns from,official pecu-
    . Such peculation was the evil sought
    to be suppressed; and the.stettitestrikes et
    the very root.of the evil, by making it an
    offense for any.oSflcer of e county, city,
    or town to become interested pecunlerlly In
    matters wherein such corporeti.ons.erepecu-
    niarily Interested. The purpose of such     .
    statute is to prevent official *rings8 from
    being formed end operated to prey upon the
    treasuries of counties, cities,,~
    and towns;
    to prevent the officers of~such corporations
    from using theLrofficie1 knowledge and ln-
    fluence to their individual pecuniary ad-
    vantage in the financial transactions of
    Hon. C. A. Pounds - Page 6   (v-381 1
    such. The objects of the statute would be
    but partially ettatied if such officers are
    to be permitted to deal with their corpor-
    ations in the sale end purchase of property."
    It is,thereforethe opinion of this office, un-
    der the facts submitted, that the county auditor is not
    authorized to contract with the county to furnish the
    various services and property outlined In Questlons'Nos.
    lend3.    The same answer applies to any contracts law-
    plly made with payment from county funds under Question
    .
    Relative to your fourth question as to whether
    the county auditor Is authorized to approve for payment
    a warrant issued to his brother-in-lawfor services rsn-
    dered to the county, Article 432, V.P.C., provides es
    follows:
    "No officer of this state or any offii-
    cer of any distrlot, county, city, precinct,
    school district, or other municipal sub-
    division of this state, or any officer or
    member of any stt%it&,
    district, county, city,
    school district or other municipal board,
    or judge of any court, created by or under
    authority of any general or special I.857
    of
    this state, or any member of the Legislature,
    shall appoint, or vote for, or confirm the
    appointment to any office, position, clerk-
    ship, employment or duty, of any person re-
    lated within the second degree by affinity
    or within the third degree by consanguinity
    to the person so eppointlng.orso voting, or
    to any other member of any such board, the
    Legislature, or court of which such person
    so eppointtig or.voting may be a member,
    when the salary, fees or compensation of
    such appointee is to be paid for, directly
    or Indirectly, out of or from pub1l.cfunds
    or fees of office of any kind or character
    whatsoever."
    Since the county auditor did not employ, aP-
    point, vote for, or confirm the appointment of his broth-
    er-in-law, you are advised that it is our opinion that
    the county auditor is authorized to approve for pEWnt
    a warrant issued to his brother-in-lawfor services rend-
    ered to the county.
    I;
    Hon. C. A. Pounds - Page 7    (v-381)                 467
    .’
    It Is e well settled rule of law that the
    county Is not liable for injuries sustained in the con-
    sequence of tortlous or negligent ects~of Its agents or
    employees unless the ll.ebllltytherefor be created by
    statute; it is also a well settled rule of law that the
    county Is not liable for the acts of Its officers where
    such acts are not performed in connection with their
    official duties. See Nussbeum v. Bell County 
    76 S.W. 430
    ; Angelina'Countyv. Bond, 17 S.W. (26) 336; Florle
    v. Galveston County, 55 3-W. 540; end Bryan v. Liberty
    county, 2gg S.W. 303.
    It has been repeated& held by this office'that
    the Commlssloners Court has no authority to contract for
    compensationinsurance for Its employees or for public
    liability Insurance:;Attorney General Opinions Nos. O-
    353, O-1922 and O-5315.; In answer to your fifth question,          '
    It Is our opinion that the county can not contract for
    compensation Insurance for its employees or for public
    liebillty~insurance. It is further our opinion that the        ~.
    county auditor is not authorized to contract with the
    countg for any Insurance, and that such contract would be
    in violation of Article 373, V.P.C.
    SUMMARY
    A county iuditor Is forbidden b$'lew from
    having a personal interest In any contract with
    tlie.county:Art; 1649, V.C.S.; 373,Penel Code.
    A brother-in-law of the county auditor is
    noteprohibited by the .nepd!ismlaw from being
    employed by the county, and the county auditor
    is authorized to approve for payment a warrant
    issued to his brother-in-lawfdr services rend-
    ered to the county. Art. p32, v.P.~.
    APBOVED: n                              Very truly yours
    ATTORNEY GENEUkL OF TEXAS
    ATTORNEY GENERAL
    JR:djm.
    

Document Info

Docket Number: V-381

Judges: Price Daniel

Filed Date: 7/2/1947

Precedential Status: Precedential

Modified Date: 2/18/2017