Untitled Texas Attorney General Opinion

PRICE DANIEL
ATTORNEY GENERAL
September 18, 1947

Hon. C. A. Pounds opinion Roe.V-381
County Attorney
Chsmbers County Re: Legality of certain
Anahuac, Texas sales to be made by
the county auditor.
Dear Sir:

i, Your request for an opinion from this office
on the above subject matter is, in pert, es folSows:
.?
9s lt illegal for a County Audl.tor
to:
Sell services to the County--
such as telephone services.
Sell Officer's Bonds to County
Officers.
Sell material end supplies to
the County--such as electrical
equipment.
.n
4. To pay a Brother-in-lawfor ser-
vic,esrendered to the County.
"5. Sell County Insurance on County
Rmployees; County Buildings, Pub-
lic Liability Insurance on County
owned trucks.
In answer toour'request for additional lnfor-
mation, you furnished us the following:
"Relative to question Ro. 1:
"So far as I know, the County Auditor is
the owner of the local telephone exchange, end
has been for e number of years. However, his
son is now assisting In the~operationof the
business. What authority he exercises in the
management of the business or whet financial
Interest he has, if any, I em unable to say.
 4fz-2
Hon. C. A. Pounds - Page 2 (V-381)

This is the only telephone exchange lo-
cated in the town of Anahuac, Texas.
"This local telephone exchange fur-
nlshes telephone service to the county.
The telephone company bills the county
each month for the amount of services
furnished during the month. The Auditor
,epprovesthese accounts just_es he does
any other account payable by the county.
As owner of the telephone company,he
also accepts payment of these accounts
by the county.
"Relative to officers official bonds:
VThe County Auditor is the repre-
sentative of a bonding company who acts
es surety for the county officers. .The
Auditor prepares the bonds and collects
the premium thereon from,the officers
or charges the amount to the proper fund.
..~ -.
_.
~..I
-- "The bondKof~'the Sheriff-tax esses-
sor-collector,County Judge, County-Dis-
trict Clerk and County Attorney are paid
for out of the fees of office. The bonds
for the County Treasurer, Auditor and
County Commissionersare paid out of the
General Fund.
"Relative to question MO. 5:
"It seems that the county is ettempt-
lng to carry some sort of a modified form
of Compensation Insurance on Its employees.
This was done before I came into office
end I have never been consulted on the
matter. I have recently learned that e
year or so ego the county entered into an
agreement with an insurance company to
Insure the employees of the county against
tijuryvhlle in the course of their emploY-
ment vlth the county. It seems that this
was done by means of a rider attached t0 a
standard compensation Insurance form. 1
em advised that the county end the lnsur-
ence company knew at the time the agree-'
ment was made that the county could not
legally cover their employees with regu-
lar compensationinsurance. However, out
 ,

Hon. C. A. Pounds -Page 3 (V-381)
.. 463

of the Cburts desire to protect the county
employees from loss from Injury, this e-
greement was made. The insurance company
agreed to pay the employee, in case of in-
jury, in same .inenuer
end in the same amounts
es are provided under re&uler compensation .*
insurence~.
"This insurance is paid for pertly out
of the Genepal Fund and pertly out of the
Road and Bridge Fund.
"The auditor represents the company _
'thatwrites the policy, and he approves
the claims end ticcepts'thepayment of same.
:
"Thencounty is 'carryingregular public
liability and property.dsmageinsurance on
county owned and operated equipment. This
insurance covers damages to persons and pro-
perty oocesloned by the operation of county
owned trucks by county .employees. The pre-
mium on this insurance is paid out of the
I_ Road and Bridge pund.~ .~
:
"The Auditor re&esents this company
and handles the claims In the manner es he
does the insurance~forthe employees~.
"I am unable to say upon what euthor-
lty the court relies to expend county funds
for these purposes. I would like to know
whether or not the Court has legal euthor-
ity to expend county funds for such purposes."
Article 1649, V.C.S., provides:
"The audltcir&ail, within.twenty days
of his appointment, and before he enters upon
the duties of:hls office, make e bona with
two or more good and sufficient sureties, in
the sum of five thousand dollars, payable to
the county judge, conditionedfor the faithful
performance of his duties, to be approved by
the commissionerscourt. He shall also take
the official oath and an additional one.in
writing, stating that he Is in every way quali-
fied uivitic the provisions'endrequirements of
this title, and~glving fiillgthe positions of
 ~~~~~Hon. C. A. Pounds - Page 4 (v-381)

private or public trust he has heretofore
held, and the length of service under each.
He shall further Include in his oath that
he will not~personallgbe interested in
any contract with the counte." (Emphasis
ours)
We quote the following from American Indem-
nity Company v. Red River National Bank in Clarksvllle,
132 S.W. (26) 473:
"Article 1645 provides that in cer-
tain counties 'there shall be biennially
appointed en auditor of accounts end fi-
nances, the title of said officer to be
county auditor.' Article 1648 prescribes
the qualificationsrequired of such offi-
cer. Article 1649 requires that he shall
take the regular oath of:office and e
special oath, and shall execute a bond in
the sum of $5,000 conditioned for the
faithful performence of his duties. . . .
i
1.~ ..- -. "He la by the statute made en officer
-. of the count in whom Is vested th
xhority and is made his duty to &iiine
and if found correct to approve the tax
collector's reports end stamp his approval
thereon. . .' (Emphasis oups)
In view of the foregoing, it is our opinion
that the county auditor Is "an officer of the county"
and subject to the provisions of Article 373, V.P.C.,
' which reed es follows:
"If any officer of any county, or of
any city or town shall become in any msn-
ner pecunlarlly interested in tiy contracts
made by such county, city or toWn, through
its agents, or otherwise, for the construo-
tlon or repair of any bridge, road, street,
alley or house, or any other work undertaken
by such county, city or town, or shall be-
come Interested in any bid or proposal for
such work or in the purchase or sale of any-
thinn made for or on account of such county,
city or town, or who shall contract for or--
receive any money or property, or the re-
presentative of either, or any emolument or
 i
-,

Hon. C. A. Pounds ,+-Page:
5 (v-381) 4165

advantage whatsoever in considerationof
such bid, ~proposal
sale he shell be ;i~~?~~"~e~ty
E&ore than five hundred dollars." (Rm-
phesis .ours)
~~III
constrting the Article 373, the Court held
insthe case of Rigby v. State, 27 Cr. R. 55, 10 S.W. 760,
thatthis Article inhibits any officer of e county from.
~enterlng into, on account of himself, any kind of finan-
cial transection with the county. We quote the follow-
ing from said case:
"It is contended by the defendant that
. the article of the Penel.Code above quoted
does not inhibit a.county officer from sell-
lng propertyto thecounty, unless such pro-
perty ves made for or on account of such
&our&y; that the word 'made,' in said arti-
cle, refers to the word.*enything,1and not
to the words':'purchaseor-sale.' We do not
agree to such construction of the article.
We edmlt that the language of that portion
of the saldartlcle, when consideredwithout
reference to the,context, or withoutinquiry
es to the legislative intent, would warrant
the Interpretationcontended for by defend-
ant; but when viewed in connectionwith the.~
context, end with reference to the purpose
which the legislature intended to effect by
the'enactment of the statute, such an lnter-
pretetion would; In our judgment,be too re-
stricted, if not strained end unreasonable.
Manifestly, the legislature, in.enactlng the
statute,.intendedthereby to.protect coun-
Hahncities, en+ towns from,official pecu-
. Such peculation was the evil sought
to be suppressed; and the.stettitestrikes et
the very root.of the evil, by making it an
offense for any.oSflcer of e county, city,
or town to become interested pecunlerlly In
matters wherein such corporeti.ons.erepecu-
niarily Interested. The purpose of such .
statute is to prevent official *rings8 from
being formed end operated to prey upon the
treasuries of counties, cities,,~
and towns;
to prevent the officers of~such corporations
from using theLrofficie1 knowledge and ln-
fluence to their individual pecuniary ad-
vantage in the financial transactions of
Hon. C. A. Pounds - Page 6 (v-381 1

such. The objects of the statute would be
but partially ettatied if such officers are
to be permitted to deal with their corpor-
ations in the sale end purchase of property."
It is,thereforethe opinion of this office, un-
der the facts submitted, that the county auditor is not
authorized to contract with the county to furnish the
various services and property outlined In Questlons'Nos.
lend3. The same answer applies to any contracts law-
plly made with payment from county funds under Question
.
Relative to your fourth question as to whether
the county auditor Is authorized to approve for payment
a warrant issued to his brother-in-lawfor services rsn-
dered to the county, Article 432, V.P.C., provides es
follows:
"No officer of this state or any offii-
cer of any distrlot, county, city, precinct,
school district, or other municipal sub-
division of this state, or any officer or
member of any stt%it&,
district, county, city,
school district or other municipal board,
or judge of any court, created by or under
authority of any general or special I.857
of
this state, or any member of the Legislature,
shall appoint, or vote for, or confirm the
appointment to any office, position, clerk-
ship, employment or duty, of any person re-
lated within the second degree by affinity
or within the third degree by consanguinity
to the person so eppointlng.orso voting, or
to any other member of any such board, the
Legislature, or court of which such person
so eppointtig or.voting may be a member,
when the salary, fees or compensation of
such appointee is to be paid for, directly
or Indirectly, out of or from pub1l.cfunds
or fees of office of any kind or character
whatsoever."
Since the county auditor did not employ, aP-
point, vote for, or confirm the appointment of his broth-
er-in-law, you are advised that it is our opinion that
the county auditor is authorized to approve for pEWnt
a warrant issued to his brother-in-lawfor services rend-
ered to the county.
 I;

Hon. C. A. Pounds - Page 7 (v-381) 467
.’

It Is e well settled rule of law that the
county Is not liable for injuries sustained in the con-
sequence of tortlous or negligent ects~of Its agents or
employees unless the ll.ebllltytherefor be created by
statute; it is also a well settled rule of law that the
county Is not liable for the acts of Its officers where
such acts are not performed in connection with their
official duties. See Nussbeum v. Bell County 76 S.W.
430; Angelina'Countyv. Bond, 17 S.W. (26) 336; Florle
v. Galveston County, 55 3-W. 540; end Bryan v. Liberty
county, 2gg S.W. 303.
It has been repeated& held by this office'that
the Commlssloners Court has no authority to contract for
compensationinsurance for Its employees or for public
liability Insurance:;Attorney General Opinions Nos. O-
353, O-1922 and O-5315.; In answer to your fifth question, '
It Is our opinion that the county can not contract for
compensation Insurance for its employees or for public
liebillty~insurance. It is further our opinion that the ~.
county auditor is not authorized to contract with the
countg for any Insurance, and that such contract would be
in violation of Article 373, V.P.C.
SUMMARY
A county iuditor Is forbidden b$'lew from
having a personal interest In any contract with
tlie.county:Art; 1649, V.C.S.; 373,Penel Code.
A brother-in-law of the county auditor is
noteprohibited by the .nepd!ismlaw from being
employed by the county, and the county auditor
is authorized to approve for payment a warrant
issued to his brother-in-lawfdr services rend-
ered to the county. Art. p32, v.P.~.
APBOVED: n Very truly yours
ATTORNEY GENEUkL OF TEXAS
ATTORNEY GENERAL

JR:djm.