                          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
