On Appellees’ Motion for Rehearing
In appellees’ motion for rehearing our attention is directed to the statement in our original opinion that “The Insurance Company having been placed in the hands of the receiver on June 17, 1954, their rights and liabilities on their contracts became fixed on that date by Sec. 2(c), Art. 21.28, Texas Insurance Code,” is erroneous because Sec. 2(c), Art. 21.28 did not become effective until September, 1955. Appellees’ statement is correct.
The enactment by the Legislature of Sec. 2(c), Art. 21.28, Texas Insurance Code, V.A.T.S., in 1955 however did not change the law as it existed in Texas prior thereto. The rights and status of creditors of a corporation become fixed as of the •date of the appointment of a receiver even though it is not then known that the corporation is insolvent. McCormick v. Puritan Coal Mining Co. (U.S.C.A., Pa.) 28 F.2d 331, cert. den., 278 U.S. 651, 49 S.Ct. 176, 73 L.Ed. 562; Baylor University v. Chester Savings Bank, Tex.Civ.App., 82 S.W.2d 738, 744, error ref.; 19 C.J.S. Corporations § 1492 ; 75 C.J.S. Receivers § 114.
Since the rights and liabilities of appel-lees had become fixed on June 17, 1954 under the above rule of law, their assertion of the right of cancellation and recission as a ground for the rendition of the summary judgment is without legal basis.
Appellees’ motion for rehearing is overruled.
Motion overruled.
On Appellant’s Motion to Set Aside Judgment
PER CURIAM.Appellees John L. Dick, D. H. Zachman and R. G. Pierce have filed a motion to set aside the opinion and judgment filed and rendered herein on the ground that Associate Justice Richards who wrote such opinion is disqualified or should recuse himself because (1) “he was of counsel in the case” and1 (2) “he advised and counseled with the State Board of Insurance of which appellant is a subordinate agency of the State, in matters directly affecting this litigation.”
The claim that Justice Richards was counsel in this cause is based on the erroneous assertion that Justice Richards was an Assistant Attorney General on June 17, 1954, when the General American Casualty Company was placed in receivership at the instance of the State acting through the Attorney General.
Justice Richards was not employed by the Attorney General of Texas from September 1, 1953 through December 31, 1956, inclusive.
Appellees, conceding that Justice Richards did not participate in this case as counsel contend that he is nonetheless disqualified because the Attorney General during the time Justice Richards was one of his employees gave advice to the “old Board of Insurance Commissioners” which resulted in deceitful and fraudulent practices by General American Casualty Company in which appellees became enmeshed.
*959Appellees do not state that Justice Richards gave any of this advice, only that he was an employee of the Attorney General when such advice was given. Justice Richards denies that he was a party to the giving of any such advice.
Justice Richards was not a first office Assistant of the Attorney General; hence Art. 4412, V.A.C.S. is not applicable. He was an employee of the Attorney General.2 An employee is not responsible for the acts of his employer, although an employer is responsible for the acts of his employee performed in the scope of his employment. Applying these fundamental principles it follows that an Assistant Attorney General is not of counsel in every case in which the Attorney General may be of counsel, but that the Attorney General is of counsel in every case in which an Assistant Attorney General, as such, is properly of counsel. See: Prince v. State, 158 Tex.Cr.R. 65, 252 S.W.2d 945, 25 Tex.Jur. 292, Judges, Sec. 48.
The only legal ground upon which disqualification is sought, that he was of counsel in this case, is untenable.
Appellees also seek to persuade Justice Richards not to sit in this case for the reason that his background of service with the Attorney General during the disturbing days of insurance company failures and frauds, and his participation in some phases of these controversies makes it inappropriate for him to take part in the decision of this case. This is a matter solely for his determination. Justice Richards declines to step down.
The motion is overruled.
Motion overruled.
RICHARDS, J., not sitting.. Art. V, See. 11, Texas Constitution, Vernon’s Ann.St.
. See Ch. 62, 57 Leg., First Called Sess. p. 262, authorizing the Attorney General to employ such personnel as are neees-sary to carry out his legal responsibilities. These persons are also, of course, employees of the State.