                       The Attorney               General           of Texas
                                          March      27,     1980

MARK WHITE
Attorney General


                   Honorable Henry Wade                          Opinion No. MW-156
                   Dallas County District Attorney
                   Sixth Floor, Records Building                 Re: Payment      of premiums for
                   Dallas, Texas 75202                           county clerks’ statutorily required
                                                                 errors and omissions policy.

                   ~Dear Mr. Wade:

                         You have requested our opinion cm the foRow&g questions:

                               L Since House Bill No. 1774 and Senate Bill No. 824
                               of the 66th Legislature do not provide that the
                               premiums for the errors and omissions insurance
                               coverage is additional compensation for services of
                              the     County    end District      Clerks,  may   .the
                               Commissioners Court pay out of the general fund of
                               the County the premiums fcr the errors and omissions
                               insurence required by House Bill No. 1744 and Senate
                               Bill No. 824 Acts of 66th Legislature 1979?
                                                                                   .,
                               2. If the Commissioners Court cannot legally.pay the
                               premiums for the errors and omissions coverage as
                               provided for in the above referenced legislation, are
                               the requirements of House Bill No. 1774 and Senate
                               Bill No. 824 that the County and District Clerks
                               obtain such errors and omissions insurance null and
                               void end without force and effect?

                        Section 5 of article 1937, Revised Civil Statutes of Texas was amended
                   by House Bill 1774, Acts 66th Leg., 1979, ch. 397, at 872, to read as follows:

                              Sec. 5. The premiums for the bonds and the errors and
                              omissions policies required by this Act to be given, or
                              to be obtained by the county clerk of each county
                              shall be paid by the Commissioners Court of the
                              county out of the general fund of the county.

                   With respect to the source of premium payments, this current section 5 is
                   StIbStantiaRy similar to section 4 of article 1937, as it was amended by House
                   Bill 125, Acts l965,59th Leg., ch. 456, at 941, which states:




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Honorable Henry Wade      -      Page Two (Nk+156)



           Sec. 4. Each county clerk shall obtain an errors and omissions
           insurance policy, if the same be available, covering the county
           clerk and the deputy or deputies of the county clerk against
           liabilities incurred through errors and omissions in the performance
           of the official duties of said county clerk and the deputy or
           deputies of said county clerk; with the amount of the policy being
           in an amount equal to a maximum amount of fees collected in any
           year during the previous term of office immediately preceding the
           term of office for which said insurance policy is to be obtained, but
           in no event shall the amount of the oolicv      be for less than Ten
           Thousand Dollars ($10,000). The premiums “for said insurance shall
           be paid out of the funds of the county by the Commissioners Court
           of said county. (Emphasis added).

       In Attorney General Opinion C-506 (19651, this office ruled that the ‘last sentence of
section 4 violated the Texas Constitution.   This analysis was based on the principle that a
county is not responsible for the misfeasance or wrongdoing of its officers or agents.
Hence, the use of public money to insure against losses which are not the ~county’s
responsibilities would be a grant of public money prohibited by section 51 and section 52 of
article Ill of the Texas Constitution.

       Attorney General Opinion C-607 (1966) followed the line of reasoning in C-506 (1965) .~
to the conclusion that the same sections of the Texas Constitution also prohibited the
county’s payment of a short term cancellation premium for a policy of errors and
omissions irwurance procured by the County Clerk of Taylor County pursuant to section 4
of article 1937.
                                  ,. .,
       Section 4 of article 1937 was amended by House Bill No. 1134, Acts 1969, 6lst Leg.,
ch 561, at 171L The provisions concerning the payment of policy premiums were placed in
a new section 5 of article 1937, which stated:

           Sec. 5. The premiums for the bonds and the errors and omissions
           policies required by this Act to be given, or to be obtained, by the
           county clerk of each county shall be paid by the Commissioners
           Court of the county out of the general fund of the county as
           additional compensation for the services of the county clerk a
           which additional compensation shall be cumulative of and to all
           other compensation     presently or hereafter authorized for said
           county clerk.

-Id at 1712. (Emphasis added).
      In Attorney General Opinion M-441 (l969), this office considered the addition of the
emphasized language reciting that the premium for errors and omissions insurance shall be
considered as additional compensation to the county clerk, and held that:

           such use of public funds falls squarely within the prohibitions of
           Sections 51 and 52 of Article III of the Constitution of Texas. This




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        Honorable Henry Wade      -   Page Three        (~~-156)



                    recitation &es not alter the fact that public moneys are being used
                    to accomplish an unauthorized purpose; that is, to discharge a
                    liability which is not the responsibility of the county.

        -Id at 3.
              In Attorney General Opinion H-1042 (1977) this office reconsidered the validity of
        the 1969 amendment to section 5 of article 1937, and found it constitutionally acceptable,
        saying:

                     The payment of the premium here is legislatively directed and is
                     authorized specifically as additional compensation for the county
                     clerk. We know of no constitutional restriction on such legislative
                    action. Tex. Const. art. 3, S 44; art. 5, S 20; art. 16, S 6L See B rd
                    v. City of Dallas, 6 S.W.%d 738 (Tex. Comm’n App. 1928,-+op nion ,,..,. :,.~,,
                    adopted); Attorney General Opinion WW-1101(l96lh see also Wichita
                                            276 S.W.2d 509 (Tex. 1954). ln our z
                                              By pay, and is required to pay, the premium
                     for the errors and omissions policy which article 1937, V.T.C.S.,
                     requires the Dallas county clerk to obtain.         Attorney General  _a ~’ ‘~
                    Opinion M-441 (1969) is overruled.
                                                                                    .
        Id at 4. This view finds further swport in Attorney General Opinion WW-731 (1959)
        -mllg      the use of county funds to provide hospitalization insurance for county officials
        and employees.       The opinion stated that “as long as this insurance is part of the
        compensation of the employees and there is statutory authority for such expenditures the
        county may pay all or part of the premiums”, & at 3. See also Attorney General Opinion
        M-989 (1971).

               The present section 5 of article 1937, quoted above at psge 1, fails to state that the
        premiums to be paid by the commissioners court out of the general fund of the county are
        to be additional compensation to the county clerk; thus, it violates sections 51 and 52 of
        article Bl of the Constitution of Texas under the reasoning of Attorney General Opinions
        C-506 (1965) and c-607 (1966).

                Haviw ruled that sections 51 and 52 of article III of the Texas Constitution prohibit
        Dallas County Commissioners Court from paying the premium on errors and omissions
        insurance for the Dallas County Clerk ss required by the current section 5 of article 1937,
         it is necessary for us to determine the effect of the invalid section 5 on the remainder of
        the current version of article 1937 and on the prior version of section 5.

              It is a rule of Texas law that if part of any act is invalid, it does not destroy the
        entire act unless the invalid part is so intermingled with all parts of the act as to make it
        inseparable.  Sharber v. Florence, 115 S.W.2d 604 (1938); Empire Gas & Fuel Co. v. State,
        47 S.W.2d 265 (1932); Vernon v. State, 406 S.W.2d 236 (Tex. Civ. App. - Corpus Christi
        1966, writ rePd n.r.e.m Freeman v. S wan, 143 S.W. 724 (Tex. Civ. App. - Bl Paso 1912,
        writ r&d); In re JohnsoDU, CAR       w. 2d 775 (Tex. Civ. App. - Corpus Christi 19771, aff’d,
                                          -...‘
        569 S.W.2d 882 (Tex. 1978).




                                                   p.    503
Honorable Henry Wade     -   Page Four     (~~-156)



       In addition, if the constitutional and unconstitutional  portions of an act may be
separated, this must be done, so as not to permit the invalid part to destroy the whole.
San Antonio Ind. Sch. Dist. v. State, 173 S.W. 525 (Tex. Civ. App. - San Antonio 1915, writ
ref’d); City of Taylor v. Taylor Bedding Mfg. Co., 215 S.W.Zd 215 (Tex. Civ. App. - Austin
1948, writ ref’dl; In re Johnson, srpra.

      The invalid portion of article 1937 is only that one paragraph regarding the source of
the payment of policy premiums, therefore it can and should be separated from the
remainder of article 1937. The requirement of section 4 of article 1937 that a county clerk
obtain an errors and omissions insurance policy remains valid

       The invalidity of the present section 5 of article 1939 not only fails to nullify the
rest of the statute; it leaves unaffected the constitutionally     valid provisions of its
predecessor, the 1969 amendment to section 5 quoted at 3 above. This rule of statutory
construction was first stated by the Texas Supreme Court in Culberson v. Ashford, 18
S.W.2d 585 fl929) and hit was recently followed in In re Johnson, supnt. In Johnson, the
court found that paragraph 3 of the 1975 amendments to article 2324, V.T.Cwated
the Texas Constitution,     and citing Culberson, the court held that “this means that
paragraph 3 of the 1961 amendment to Article 2324 (the prior law) remains in effect.”
Johnson, supra, at 787.

      In this case, the prior law is the 1969 amendment to section 5 of article 1937, which
we have held constitutionally    permissible in Opinion H-1042 (1977). Under the rule of
Culberson, this provision remains effective authority for Dallas County to continue to pay
the premium for the required policy of errors and omissions insurance as additional
compensation for the services of the county clerk.

                                      SUMMARY

           Section 5 of article 1937, Revised Civil Statutes of Texas, as
           amended by House Bill 1774, Acts 66th Leg., 1979, ch 397, at 872,
           violates the Texas Constitution,    article III, sections 51 and 52
           insofar as it authorizes the. commissioners court to expend public
           money for premiums to insure the public sgainst errors and
           omissions of the county clerk and his deputies. Attorney General
           Opinions C 506 (1965) and C-607 (1966). The prior version of
           section 5, article 1937 remains valid authority for Dallas County
           Commissioners Court to pay the premiums on the required errors
           and omissions insurance as additional compensation to the county
           clerk.

                                          s.ud@--

                                               MARK       WHITE
                                               Attorney   General of Texas




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        Honorable Henry Wade     -   Page Five   (NW-1561



        JOHN W. PAINTER, JR.
        First Assistant Attorney General

        TED L. HARTLEY
        Executive Assistant Attorney General

        Prepared by Ed Garvey
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        C. Robert Heath, Chairman
        Walter Davis
        Bob Gammage
        Susan Garrison
        Ed Garvey
        Rick Gilpin




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