OFFICE OF THE ATTORNEY GENERAL
GERALD C. MANN
Attorney General June 13, 1939
,Hon. P. L. Marquess
County Auditor
Wharton County
Wharton, Texas
Dear Sir:
Opinion No. O-902
Re: Who should pay the bonds of the county
treasu,rer, justice of the peace, con-
stable, county commissioners, county
surveyor, c,ounty auditor, county
librarian, and the superintendent of
the county hospital and their deputies ?
Your request for opinion upon the above stated question has been re-
ceived by this department,
The population of Wharton County, Texas is twenty-nine thousand six
hundred and eighty-one (29,681) inhabitants , according to the last preceding
Federal census. Therefore, the county officers are subject ~to the Officer’s
Salary Law. You did not inform us as to whether or not the precinct officers
of the county are on the salary system or on a fee basis.
Article 3883, Revised Civil Statutes of Texas, in part, reads as
follows:
“Maximum fees - Except as otherwise provided in this Act,
the annual fees that may be retained by precinct, county and dis-
trict officers mentioned in this Article shall be as follows:....”
(The officers mentioned in this article are county judge, district
or criminal district attorney, sheriff, county clerk, county at-
torney, district clerk, tax collector, tax assessor, assessor and
collector of taxes, Justice of the Peace and constable.)
Article 3891, Revised Civil Statutes of Texas, in part, reads as
follows:
“Disposition of fees - Each officer named in this chapter
shall first out of the current fees of his office pay or be paid
the amount allowed him under the provisions of Article 3883,
together with the salaries of his assistants and deputies, and
authorized expenses under Article 3899, and the amount neces-
sary to cover costs of premium on whatever surety bond may be
required by law....”
Hon. P. L . Marquess, J&e 13, 1939, Page 2
Article 3899(a), Revised Civil Statutes of Texas, in part, reads as
follows:
“Expense account - A,t the close of each month of his tenure
of office each officer named herein,who is compensated on a fee
basis shall nake as part of the report now required by law, an
itemized and sworn statement of all the actual and necessary
expenses incurred by him in the conduct of his office, such as
stationery, stamps, telephone, premiums on officials’ bonds,
including the cost of surety bonds for his Deputies, etc.....”
Article 3899(b), Revised Civil Statutes of Texas, in part, reads as
follows:
“Each officer named in this Act, where he receives a salary
as compensation for his services, shall be empowered and per-
mitted to purchase and have charged to his county all reasonable
expenses necessary in the proper and legal condu,ct of his office,
premiums and officials’ bonds, etc.....”
Opinion No. O-204 of this department holds that the commis,sioners’
court does not have the authority to pay premiums on the official surety bond
of the county treasurer.
Opinion NO. 056 of this department holds that the county is not authorized
to pay the premium on official bond for the members of tie commissioners’ court.
Opinion No. O-06 of this department holds that the premium on the of-
ficial ‘bond of the county auditor should not be paid by the county.
Opinion No. ‘O-56, cited above, further holds that in counties in which
precinct officers are on a fee basis, the county is not liable to pay premiums
on officials’ bonds of precinct officers.
County treasurers, county commissioners, county surveyors, county
auditors, county librarians and superintendents of county hospitals are not fee
officers named in Articles 3883, 3891 and 3899, Revised Civil Statutes of Texas
and do not come within the provisions of the Officer’s Salary Law, whereby the
expense of premiums on their official bonds could be legally charged up as an
expense of office to be paid by the county.
Constables and justices of the peace are precinct officers of the county
and are named in Article 3883, Revised Civil Statutes of Texas. The comni ssioners’
court, by proper order, at the proper time, may place the justices of the’peace
and constables of the county on a salary basis. Conference opinion No. O-516 of
this department holds that the commissioners’ court has to place all justices of
the peace and all constables of the county on a salary basis or leave all on a fee
basis. If the justices of the peace and the constables of the county are placed on
a salary basis by the commissioners’ court in the manner outlined by law, then
it is the duty of the Commissioners’ co,urt to pay the premium on the official
bonds of the justices of the peace and the constables out of the Officer’s Salary
Fund of the county. If the justices of the peace and constables are on a fee basis
the county is not liable for the premiums on their official bonds. However, the
.
H~on. P. L. Marquess,‘June 13, 1939. Page 3
justices of the peace and constables may pay same out of their excess fees of
office as a legal expense.
Therefore, you are respectfully advised that it is the opinion of ~this~
department that the county treasurer, county commissioners, county surveyor,
county auditor, county librarian and the superintendent of the county hospital
and their deputies, should personally’pay the premlum on their official bonds.
You are further re~spectfully advised that It is the opinion of this department
that it would be improper and illegal for’the county to pay ,the’premium on the
official bonds of the county treasurer, county commissioners, county surveyor,
county auditor, county librarian and the superintendent of the county hospital
and their deputies.
You are further respectfully advised that if the constables and justices
of the peace are placed on the salary basis, then it is the duty of the county to
pay the premium on the official bonds of the justices of the peace, constables
and their deputies. You are further respectfully advised that if the constables
and the justices of the peace are on a fee basis then It would be illegal and
improper for the county to pay the premium on the official bonds of the justices
of the peace and constables and their deputies. You are further respectfully
advised that.it is the opinion of this department that if the constables and
justices of the peace are on a fee basis than, in that event, the constables and
justices of the peace and their deputies may pay the premium on their official
bonds out of their excess fees of office as legal expenses.
Tr,usting that this answers your inquky, we are
Very truly yours
ATT~RNEYGENERALOFTE~AS
BY
Wm. J. Fanning
Assistant
W JF:AWdb
APPROVED:
ATTORNEY GENERAL OF TEXAS