Untitled Texas Attorney General Opinion

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-