The Attorney General of Texas
March 27, 1980
MARK WHITE
Attorney General
Honorable Henry Wade Opinion No. MW-156
Dallas County District Attorney
Sixth Floor, Records Building Re: Payment of premiums for
Dallas, Texas 75202 county clerks’ statutorily required
errors and omissions policy.
~Dear Mr. Wade:
You have requested our opinion cm the foRow&g questions:
L Since House Bill No. 1774 and Senate Bill No. 824
of the 66th Legislature do not provide that the
premiums for the errors and omissions insurance
coverage is additional compensation for services of
the County end District Clerks, may .the
Commissioners Court pay out of the general fund of
the County the premiums fcr the errors and omissions
insurence required by House Bill No. 1744 and Senate
Bill No. 824 Acts of 66th Legislature 1979?
.,
2. If the Commissioners Court cannot legally.pay the
premiums for the errors and omissions coverage as
provided for in the above referenced legislation, are
the requirements of House Bill No. 1774 and Senate
Bill No. 824 that the County and District Clerks
obtain such errors and omissions insurance null and
void end without force and effect?
Section 5 of article 1937, Revised Civil Statutes of Texas was amended
by House Bill 1774, Acts 66th Leg., 1979, ch. 397, at 872, to read as follows:
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.
With respect to the source of premium payments, this current section 5 is
StIbStantiaRy similar to section 4 of article 1937, as it was amended by House
Bill 125, Acts l965,59th Leg., ch. 456, at 941, which states:
P. 501
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Honorable Henry Wade - Page Two (Nk+156)
Sec. 4. 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 oolicv be for less than Ten
Thousand Dollars ($10,000). The premiums “for said insurance shall
be paid out of the funds of the county by the Commissioners Court
of said county. (Emphasis added).
In Attorney General Opinion C-506 (19651, this office ruled that the ‘last sentence of
section 4 violated the Texas Constitution. This analysis was based on the principle that a
county is not responsible for the misfeasance or wrongdoing of its officers or agents.
Hence, the use of public money to insure against losses which are not the ~county’s
responsibilities would be a grant of public money prohibited by section 51 and section 52 of
article Ill of the Texas Constitution.
Attorney General Opinion C-607 (1966) followed the line of reasoning in C-506 (1965) .~
to the conclusion that the same sections of the Texas Constitution also prohibited the
county’s payment of a short term cancellation premium for a policy of errors and
omissions irwurance procured by the County Clerk of Taylor County pursuant to section 4
of article 1937.
,. .,
Section 4 of article 1937 was amended by House Bill No. 1134, Acts 1969, 6lst Leg.,
ch 561, at 171L The provisions concerning the payment of policy premiums were placed in
a new section 5 of article 1937, which stated:
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 compensation for the services of the county clerk a
which additional compensation shall be cumulative of and to all
other compensation presently or hereafter authorized for said
county clerk.
-Id at 1712. (Emphasis added).
In Attorney General Opinion M-441 (l969), this office considered the addition of the
emphasized language reciting that the premium for errors and omissions insurance shall be
considered as additional compensation to the county clerk, and held that:
such use of public funds falls squarely within the prohibitions of
Sections 51 and 52 of Article III of the Constitution of Texas. This
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Honorable Henry Wade - Page Three (~~-156)
recitation &es not alter the fact that public moneys are being used
to accomplish an unauthorized purpose; that is, to discharge a
liability which is not the responsibility of the county.
-Id at 3.
In Attorney General Opinion H-1042 (1977) this office reconsidered the validity of
the 1969 amendment to section 5 of article 1937, and found it constitutionally acceptable,
saying:
The payment of the premium here is legislatively directed and is
authorized specifically as additional compensation for the county
clerk. We know of no constitutional restriction on such legislative
action. Tex. Const. art. 3, S 44; art. 5, S 20; art. 16, S 6L See B rd
v. City of Dallas, 6 S.W.%d 738 (Tex. Comm’n App. 1928,-+op nion ,,..,. :,.~,,
adopted); Attorney General Opinion WW-1101(l96lh see also Wichita
276 S.W.2d 509 (Tex. 1954). ln our z
By pay, and is required to pay, the premium
for the errors and omissions policy which article 1937, V.T.C.S.,
requires the Dallas county clerk to obtain. Attorney General _a ~’ ‘~
Opinion M-441 (1969) is overruled.
.
Id at 4. This view finds further swport in Attorney General Opinion WW-731 (1959)
-mllg the use of county funds to provide hospitalization insurance for county officials
and employees. The opinion stated that “as long as this insurance is part of the
compensation of the employees and there is statutory authority for such expenditures the
county may pay all or part of the premiums”, & at 3. See also Attorney General Opinion
M-989 (1971).
The present section 5 of article 1937, quoted above at psge 1, fails to state that the
premiums to be paid by the commissioners court out of the general fund of the county are
to be additional compensation to the county clerk; thus, it violates sections 51 and 52 of
article Bl of the Constitution of Texas under the reasoning of Attorney General Opinions
C-506 (1965) and c-607 (1966).
Haviw ruled that sections 51 and 52 of article III of the Texas Constitution prohibit
Dallas County Commissioners Court from paying the premium on errors and omissions
insurance for the Dallas County Clerk ss required by the current section 5 of article 1937,
it is necessary for us to determine the effect of the invalid section 5 on the remainder of
the current version of article 1937 and on the prior version of section 5.
It is a rule of Texas law that if part of any act is invalid, it does not destroy the
entire act unless the invalid part is so intermingled with all parts of the act as to make it
inseparable. Sharber v. Florence, 115 S.W.2d 604 (1938); Empire Gas & Fuel Co. v. State,
47 S.W.2d 265 (1932); Vernon v. State, 406 S.W.2d 236 (Tex. Civ. App. - Corpus Christi
1966, writ rePd n.r.e.m Freeman v. S wan, 143 S.W. 724 (Tex. Civ. App. - Bl Paso 1912,
writ r&d); In re JohnsoDU, CAR w. 2d 775 (Tex. Civ. App. - Corpus Christi 19771, aff’d,
-...‘
569 S.W.2d 882 (Tex. 1978).
p. 503
Honorable Henry Wade - Page Four (~~-156)
In addition, if the constitutional and unconstitutional portions of an act may be
separated, this must be done, so as not to permit the invalid part to destroy the whole.
San Antonio Ind. Sch. Dist. v. State, 173 S.W. 525 (Tex. Civ. App. - San Antonio 1915, writ
ref’d); City of Taylor v. Taylor Bedding Mfg. Co., 215 S.W.Zd 215 (Tex. Civ. App. - Austin
1948, writ ref’dl; In re Johnson, srpra.
The invalid portion of article 1937 is only that one paragraph regarding the source of
the payment of policy premiums, therefore it can and should be separated from the
remainder of article 1937. The requirement of section 4 of article 1937 that a county clerk
obtain an errors and omissions insurance policy remains valid
The invalidity of the present section 5 of article 1939 not only fails to nullify the
rest of the statute; it leaves unaffected the constitutionally valid provisions of its
predecessor, the 1969 amendment to section 5 quoted at 3 above. This rule of statutory
construction was first stated by the Texas Supreme Court in Culberson v. Ashford, 18
S.W.2d 585 fl929) and hit was recently followed in In re Johnson, supnt. In Johnson, the
court found that paragraph 3 of the 1975 amendments to article 2324, V.T.Cwated
the Texas Constitution, and citing Culberson, the court held that “this means that
paragraph 3 of the 1961 amendment to Article 2324 (the prior law) remains in effect.”
Johnson, supra, at 787.
In this case, the prior law is the 1969 amendment to section 5 of article 1937, which
we have held constitutionally permissible in Opinion H-1042 (1977). Under the rule of
Culberson, this provision remains effective authority for Dallas County to continue to pay
the premium for the required policy of errors and omissions insurance as additional
compensation for the services of the county clerk.
SUMMARY
Section 5 of article 1937, Revised Civil Statutes of Texas, as
amended by House Bill 1774, Acts 66th Leg., 1979, ch 397, at 872,
violates the Texas Constitution, article III, sections 51 and 52
insofar as it authorizes the. commissioners court to expend public
money for premiums to insure the public sgainst errors and
omissions of the county clerk and his deputies. Attorney General
Opinions C 506 (1965) and C-607 (1966). The prior version of
section 5, article 1937 remains valid authority for Dallas County
Commissioners Court to pay the premiums on the required errors
and omissions insurance as additional compensation to the county
clerk.
s.ud@--
MARK WHITE
Attorney General of Texas
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Honorable Henry Wade - Page Five (NW-1561
JOHN W. PAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Ed Garvey
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Walter Davis
Bob Gammage
Susan Garrison
Ed Garvey
Rick Gilpin
p. 505