February 27, 1939
Honorable Robert F. Cherry
County’Attorn‘ey,Basque County
Merldlan, Texas
bear Pk. Cherry: Opinion‘No. O-350
Re: Authority.of Commissioiiers
I
Court to compromisecIa.lm
for excea fees retained by
County Treasurer
YoW’letter of February.11th addieasea to.Honor&ble
GeraId C. Mann, Attorney General of Texas, ~hasbeen Pecelved
i’orattention by this Department. Pour request for en opinion, -
cbhtdlnea in two questions compritilngthe second end third
paragrapha of your letter; reads aa follows:
‘%a8 the County CommisaLoner’sCourt the
right, power and authodty to extend to a Bounty
Tredsurer and ~the susetles on hXs bond tLme iti
which to pay a shortage in the accounta of such
County Treasurer of funds belongfng to--thebounty?
Putting the aame question in another way, may the
Commlssl.oner~a Court of the County, in a cab6
uhere.the County Treasurer haasretained excess
fees ena bommiasions over and above the amonnt
provided end permitted by law to such County Tree-
surer, accept in lieu of cash, the note of said
County Treasurer signed by the’.CountyTreasurer
ena the,sureties on his official bond, ‘pagablein
monthly installmentsover a p%riOd of a year or more
or less?
“The second question: If the Cotnnk~aioner~s
Court has the authority to extend the ipaymentof
the shortage, as hereinabove set out, and to accept
such note or notes end does do so; Is the (founty
Attorney thereby relieved of the duty enjoin&i
upon him by Art. ~339 of the RWired Civil gtattites
to bring suit against the ‘frciaaurer and suretlea
on his bond es soon 88 the facts of the shortage
comes to his knowledge?”
The Commlasloners~ Court derives Its powers en& authority
from the Constitutionend Laws of the State. Article 5, Section
.I..
Hon. Robert F. Cherry, February 27, 1939, page 2 O-358
18 of the Constitutionof Texas, reeds, in part, es follows:
"The county commlsslbnerai!o‘choaenrwith'
~,the
county juage; es presfafng officer;shelI Ooinpose
CoUrt,~whYch&hall exbrclse
the County ComiUsslofi~eri
aiichpotiBrsetidjurlsaICtIonav&+ hll bounty bus-.
lfiCss;ea~Is cbnferred by thIs'conbtXtutXonarid'the-
laws of the State, or as may be hereafter,
prescribed."
Artlble 1704 provlalng for e bona by the County Treas-
urer reads as follows:
"The county treasurer before entering tipsn~the
,autl%sof.his office, end within dents days after
he heS receIvea hla certificate of election, shell
give a bond payable to the county judge of his
county,~tobe approved by ttieconimlatiIone?s co&+;
In such sum es such court may deem n6cessery, con-
aitionea that such treasurer shall fkiIthfullJi‘&x--
ecute the~autik of his offIc%'~eti‘pay over ticcora-
Ing to-la% all moneys wbloh-shell come"lnto~'Kls‘
hands es county treasurer, and reti& a true account
",htt"t;to said court at eabh regular term of said
The ConatItut$onapea not confer upon the CoismIssldn~ra~
Court any general authorltg over the county business but tier&y
gives them such special powers and jurIsdIi$Ion~ov%r~ell b'iuntf
business as Ia conferred by the Cdfiat~tutIon"I.taelfend the laws
of the State; or as mIgk& be thereafter reacrlbea.
; PO;&3 .
County v. Lampeaes Count 90 Tex. 603, 10 s . I?. 403'
Campbell et al, 48 S.W.m, 2) 515..
,f'
A debt firea ln amouritcannot be dlschergedby'peyment'
hnd acceptance of a less amount; payment and acceptance of such
aihohnt'furnlsheano consIderetlonforithe rell ulsbment of the
31, Rev. Bunt
balance owing. .Gr%er v. Hunt 'County 249 S.W."IT
County v. Greer, 214 S.W. (Clv. App.j 605.
A county or the 3uccesaor of the official can a8 a rule
accept itioriey
only on settlementwith such official. 15 Corpus
JUr., paragraph 190, p. 517.
The aaceptance of notes in lieu of cash by the Commis-
sioners' Court woula not be euthorlled as a surety bond of the
Cdiinty'PreasuPerwould in such insknbe, If %Uthorie%d,‘be re-
leased; We have been uniXbleto find'ang stetutbryauthority
for such action bn.th6 part of~'~th%,CMunIsslon%r~~~~Courtover
It Bppeara.thatthe.cese of Blend .
obligationsdue e .countjyi‘-.
et al v. Crr, County Judge, founa In 90 Tex. 492, 39 S.W. 558,
- . . .
Hon. Robert F. Cherry, February 27, 1939, Page 3 O-358
Is ample end dir&t authority upon the questioiis presented h~ere-
In. .We would llke to poFnt out that In the'Bled case, supre,
Chief Justlce Gaines made mention of the fact that It wtisnot
shown whether the amount involved in that case could have been-
made by execution of the sureties on the appellant's (Treasurer)
official bond or not.
It Is, therefore,the opinion of this Departm&t that
the Commissioners'Court would not be authorized to accept a
note in lleu of cash belonging to the courityend tilewfully'
retained by the County Treasurer. We conclude that the'tibove
ruling disposes of the necessity of our answering your second
question.
Yours very truly
ATTORNEYGENEZALOF TEXAS
By s/Wm. J. R. King
Wm. J:'R. King
Assistant
WJRK:Bt:wc
Approved:
s/Gerald C. Maim
Attorney General of Texas