Untitled Texas Attorney General Opinion

Honorable Franklin L. Smith Opinion No. C- 506 County Attorney Nuecea County Courthouee . Re: Whether Section 4 of Corpus Chrlatl, Texas Article 1937 as provided for by Section 1 of House ' Bill 125, Acts 59th Legla- lature, 1965, Regular Session, ch. 456, p. 941, is unconstitutional by virtue of Section 51 or Section 52 oftArticle III of the Constitution of Dear Mr. Smith: Texas. You have requested the opinion of thle office upon the following questions: "l.,,Ie Section 4 of House Bill 125, 59th Leglslature,~constltutlonal Insofar as It re- quire&that the premiums for the llablllty in-~ surance'prote~ctlngthe county clerk be paid out of oounty funde? "%i' Iff.&cli p*ovieiony ii~.Mco.nstitutlonal _. ar@$he3ou&y 1s bpecluded from paying thli .premlum,'muet,-.the;~ountyclerk’purchaee such ineur&n@e for the ~Tmtectlon of himself and hla .Aeputiee?" I~.,i : Section 4 of Article 1937, as provided for by-Section 1 of ?Iou&Blll 125 Acts 59th Leglelature, 1965, Regulax'Ses- slon, ch. '456,d..gbl. provides that: "Each~&unty cl&k &all-obtain an errors and odsslone lnsuranae policy, if the same be avallable,lcgverlng the aounty clerk and the deputy or,~;deputles of the oounty clerk llab1lltlbs'lncurred through erroro enPY% om 88 one 'inthe performance of thenofflelal duties of said county clerk and the deputy or deputies of said -2307- Hon. Franklin L. Smith, page 2 (C-506) w clerk. with the amount of the policy being 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, We are of the oplnlon that Section 4 of Article 1937, as provided for by Section 1 of House Bill 125, providing for the obtaining of an errors and omissions Insurance policy covering the County Clerk and his deputies, Is In violation of Section 51 and Se&Ion 52 of Article III of the Constitution of Texas. Set - tlon 51 of Article III of the Constitution of Texas provides In part that: ttTheLegislature shall have no power to make any grant or authorize the making of any grant of public moneys to any Individual. . . .' Sectlon 52 of Article III of the Constitution of Texas provides In part that: "The Leglalature shall have no power to authorize any county, city, town or other political corporation or subdlvlslon of the State to lend Its credit or to grant public money or thing $f value In aid of, or to any Individual. . . . The rule of law In Texas Is well settled that a county Is not liable for the tortloua or negligent acts of Its officers, anents or emolovees. HeiRel v. Wichita-Count 19 S.W. 562 (Tex. Silp.Ct.1892); %lorla v. CtalvestonCount 755% .W. 540 (Tex.Clv. App. 1900); Nussbaum v. Bell County, 97 x1-86; 76-s.w: 430 (1903); Bryan v. Liberty County 299 S.W. 303 (Tex.Clv.App. 1927); Jones County v. Moore, 4 S W 2 289 (Tex.Clv.Al 1928, error ref. &ngellna County v. Bond, 16 s.W.2d 338 (Tex.Cl%xm. 1929). At- t0rne.vOeneral's ODInions Nos. O-5315 (1943). ( . - _._ 3-353 (19399).and o-1923 (1940). In-addition, It w&s etated by the Supreme Court of Texas In the case of State v. City of Austin, 160 Tex. 348, 331 S.W.2d 737 (1960) that: 1, . . .the use of public money to pay a claim predicated on facts which generate no state llablllty constitutes a gift or donation In violation of our Constitution." -2388- Hon. Franklin L. Smith, page 3 (C- 506) While the foregoing case Involved the State rather than a county, the above-quoted rule of law would be equally applicable to a county In view of the language contained In Section 51 and Section 52 of Article III of the Constitution of Texas. As It would be in violation of Section 51 and Section 52 of Article III of the Constitution of Texas for a county to pay a claim of a person fora loss suffered by such person for some act of the County Clerk or his deputies In the perfor!nance of their official duties, It would llkewlsa be a violation of the same constitutional provisions for a Gounty to pay the premiums on an Insurance policy which had as Its purpose the paying of a claim predicated on facts which generated no county 1lablllty. In this same connection It was stated In Attorney General's Opinion No. O-1922 (1940) that: 1, . . .It Is fundamental that the county would have no authorlty,,toInsure against a non-existent llablllty. In the event the purpose of the Insurance policy pro- vided for In Section 4 of Article 1937, as provided for by Section 1 of.House Bill 125, was to afford the County Clerk and his deputies a form of protection from personal monetary loss for some act of theirs which resulted In their personal llablllty to scme member of the public, then the payment of the premiums of the Insurance policy by the county would clearly constitute a gift or donation of public moneys to the County Clerk and his deputies ln violation of Section 51 and Section 52 of Article III of the Constltutlon of Texas. See Attorney General's Opinion No. O-353 (1939). As we have held that Sectlon 51 and Section 52 of Article III of the Constitution prohibits the county from paying the premiums on the Insurance policy required by Section 4 Of Article 1937, as provided for by Section 1 of House Blll 125, It becomes necessary to pass upon the question of whether the County Clerk Is nevertheless required to obtain such errors and omissions policy. In this connection, we are of the opinion that because the obtaining of this Insurance policy Is an official duty of the County Clerk and the method or means of performing this duty, the payment of the premiums upon the policy, Is prohibited by the Constitution, then the requirement of obtaining the Insurance policy must necessarily fall also. In view of the result we have reached In connectlon with the questions posed concerning Section 4 of Article 1937, -2389- ,. Hon. Franklin L. Smith, page 4 (C306) ae provided for by Section 1 of House Bill 125, It should be noted that Section 3 of House Bill 125 provides that: "If any provision or provisions o$.thls Act or the application thereof to any person or circumstances Is held Invalid, such #n- validity ahall not sffect,other provlsl+s or applications of the Act which can be~glven effect without the Invalid provision or ap- plication, and to this end the provisions of this Act are declared to be severable.n By virtue of the foregoing provision and the fact that Sections 1, 2, and 3 of Article 1937, as provided for by Section 1 of House Bill 125, deal, with the giving of a bond by the County Clerk,.an entirely different subJect matter,whlch Is independent of the provisions of Section 4 of Article 1937, we are of the opinion that Section 4 of Article 1937, as provided for by Sec- tion 1 of House Bill 125, Is severable and Its unconstltutlonallty~ does not Invalidate the remaining @rovlslons~of House Bill 125. SUMMARY The payment of premiums by a co&&y on the errors and omissions insurance policy required by the provisions of Section 4 of Article 1937, as provided for by Section 1 of House Bill 125, Acts 59th Legislature, 1965, Regular Session, ch. 456, p. 941, violates Section 51 and ,Sectlon 52 of Article III of the Constitution of Texas. The payment of the premiums by a county on the foregoing error8 and omlsalons insurance policy ~belngIn vlolatlonof the Constitution of Texas, It is unnecessary for the County Clerk to obtain such Insurance policy. The lnvalldlty of Section 4 of Article 1937, was provided for by House Bill 125, does not ln- validate the remaining provisions contained In House Bill 125. Very truly yours, Pat Bailey PB:lUkh Assistant -2390- * . -. <. ,,’ Hon. Franklin L. Smith, page 5 (C- 506) APPROVED: I OPINION COMMITTEE i’ W. 0. Shultz, Chairman John Reeves I Roy Johnson y; gdnson APPROVED FOR THEiAlTORNE!?O= BY: T. B. Wright c -2391-