Honorable Franklin L. Smith         Opinion No. C- 506
County Attorney
Nuecea County Courthouee        .   Re:   Whether Section 4 of
Corpus Chrlatl, Texas                     Article 1937 as provided
                                          for by Section 1 of House
      '                                   Bill 125, Acts 59th Legla-
                                          lature, 1965, Regular
                                          Session, ch. 456, p. 941,
                                          is unconstitutional by
                                          virtue of Section 51 or
                                          Section 52 oftArticle III
                                          of the Constitution of
Dear Mr. Smith:                           Texas.
          You have requested the opinion of thle office upon
the following questions:
         "l.,,Ie Section 4 of House Bill 125, 59th
    Leglslature,~constltutlonal Insofar as It re-
    quire&that the premiums for the llablllty in-~
    surance'prote~ctlngthe county clerk be paid out
    of oounty funde?
         "%i' Iff.&cli p*ovieiony ii~.Mco.nstitutlonal           _.
     ar@$he3ou&y     1s bpecluded from paying thli
    .premlum,'muet,-.the;~ountyclerk’purchaee such
     ineur&n@e for the ~Tmtectlon of himself and
     hla .Aeputiee?"    I~.,i                             :
          Section 4 of Article 1937, as provided for by-Section
1 of ?Iou&Blll 125 Acts 59th Leglelature, 1965, Regulax'Ses-
slon, ch. '456,d..gbl. provides that:
          "Each~&unty cl&k &all-obtain an errors
    and odsslone lnsuranae policy, if the same be
    avallable,lcgverlng the aounty clerk and the
    deputy or,~;deputles
                       of the oounty clerk
    llab1lltlbs'lncurred through erroro enPY%
                                            om 88 one
    'inthe performance of thenofflelal duties of said
    county clerk and the deputy or deputies of said

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Hon. Franklin L. Smith, page 2 (C-506)



     w      clerk. with the amount of the policy being
                  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,




          We are of the oplnlon that Section 4 of Article 1937,
as provided for by Section 1 of House Bill 125, providing for
the obtaining of an errors and omissions Insurance policy covering
the County Clerk and his deputies, Is In violation of Section 51
and Se&Ion 52 of Article III of the Constitution of Texas. Set -
tlon 51 of Article III of the Constitution of Texas provides In
part that:
          ttTheLegislature shall have no power to
     make any grant or authorize the making of any
     grant of public moneys to any Individual. . . .'
          Sectlon 52 of Article III of the Constitution of Texas
provides In part that:
          "The Leglalature shall have no power to
     authorize any county, city, town or other political
     corporation or subdlvlslon of the State to lend
     Its credit or to grant public money or thing $f
     value In aid of, or to any Individual. . . .
          The rule of law In Texas Is well settled that a county
Is not liable for the tortloua or negligent acts of Its officers,
anents or emolovees. HeiRel v. Wichita-Count    19 S.W. 562 (Tex.
Silp.Ct.1892); %lorla v. CtalvestonCount 755% .W. 540 (Tex.Clv.
App. 1900); Nussbaum v. Bell County, 97   x1-86; 76-s.w: 430
(1903); Bryan v. Liberty County 299 S.W. 303 (Tex.Clv.App. 1927);
Jones County v. Moore, 4 S W 2 289 (Tex.Clv.Al    1928, error ref.
&ngellna County v. Bond, 16 s.W.2d 338 (Tex.Cl%xm.   1929). At-
t0rne.vOeneral's ODInions Nos. O-5315 (1943). (
                                      . - _._ 3-353 (19399).and
o-1923 (1940). In-addition, It w&s etated by the Supreme Court
of Texas In the case of State v. City of Austin, 160 Tex. 348,
331 S.W.2d 737 (1960) that:
          1,
           . . .the use of public money to pay a
     claim predicated on facts which generate no
     state llablllty constitutes a gift or donation
     In violation of our Constitution."

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Hon. Franklin L. Smith, page 3 (C- 506)


While the foregoing case Involved the State rather than a
county, the above-quoted rule of law would be equally applicable
to a county In view of the language contained In Section 51 and
Section 52 of Article III of the Constitution of Texas.
          As It would be in violation of Section 51 and Section
52 of Article III of the Constitution of Texas for a county to
pay a claim of a person fora loss suffered by such person for
some act of the County Clerk or his deputies In the perfor!nance
of their official duties, It would llkewlsa be a violation of
the same constitutional provisions for a Gounty to pay the
premiums on an Insurance policy which had as Its purpose the
paying of a claim predicated on facts which generated no county
1lablllty. In this same connection It was stated In Attorney
General's Opinion No. O-1922 (1940) that:
          1,
           . . .It Is fundamental that the county
     would have no authorlty,,toInsure against a
     non-existent llablllty.
          In the event the purpose of the Insurance policy pro-
vided for In Section 4 of Article 1937, as provided for by
Section 1 of.House Bill 125, was to afford the County Clerk and
his deputies a form of protection from personal monetary loss
for some act of theirs which resulted In their personal llablllty
to scme member of the public, then the payment of the premiums
of the Insurance policy by the county would clearly constitute
a gift or donation of public moneys to the County Clerk and his
deputies ln violation of Section 51 and Section 52 of Article
III of the Constltutlon of Texas. See Attorney General's Opinion
No. O-353 (1939).
          As we have held that Sectlon 51 and Section 52 of
Article III of the Constitution prohibits the county from paying
the premiums on the Insurance policy required by Section 4 Of
Article 1937, as provided for by Section 1 of House Blll 125,
It becomes necessary to pass upon the question of whether the
County Clerk Is nevertheless required to obtain such errors
and omissions policy.
          In this connection, we are of the opinion that because
the obtaining of this Insurance policy Is an official duty of
the County Clerk and the method or means of performing this duty,
the payment of the premiums upon the policy, Is prohibited by the
Constitution, then the requirement of obtaining the Insurance
policy must necessarily fall also.
          In view of the result we have reached In connectlon
with the questions posed concerning Section 4 of Article 1937,

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                                                           ,.


Hon. Franklin L. Smith, page 4 (C306)


ae provided for by Section 1 of House Bill 125, It should be
noted that Section 3 of House Bill 125 provides that:
          "If any provision or provisions o$.thls
     Act or the application thereof to any person
     or circumstances Is held Invalid, such #n-
     validity ahall not sffect,other provlsl+s
     or applications of the Act which can be~glven
     effect without the Invalid provision or ap-
     plication, and to this end the provisions of
     this Act are declared to be severable.n
By virtue of the foregoing provision and the fact that Sections
1, 2, and 3 of Article 1937, as provided for by Section 1 of
House Bill 125, deal, with the giving of a bond by the County
Clerk,.an entirely different subJect matter,whlch Is independent
of the provisions of Section 4 of Article 1937, we are of the
opinion that Section 4 of Article 1937, as provided for by Sec-
tion 1 of House Bill 125, Is severable and Its unconstltutlonallty~
does not Invalidate the remaining @rovlslons~of House Bill 125.
                    SUMMARY
         The payment of premiums by a co&&y on the
    errors and omissions insurance policy required
    by the provisions of Section 4 of Article 1937,
    as provided for by Section 1 of House Bill 125,
    Acts 59th Legislature, 1965, Regular Session,
    ch. 456, p. 941, violates Section 51 and ,Sectlon
    52 of Article III of the Constitution of Texas.
         The payment of the premiums by a county on
    the foregoing error8 and omlsalons insurance policy
    ~belngIn vlolatlonof the Constitution of Texas,
    It is unnecessary for the County Clerk to obtain
    such Insurance policy.
          The lnvalldlty of Section 4 of Article 1937,
    was provided for by House Bill 125, does not ln-
    validate the remaining provisions contained In
    House Bill 125.
                           Very truly yours,




                                Pat Bailey
PB:lUkh                         Assistant
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*


               . -.
    <.   ,,’




                 Hon. Franklin L. Smith, page 5 (C- 506)


                 APPROVED:
    I            OPINION COMMITTEE
    i’           W. 0. Shultz, Chairman
                 John Reeves
    I            Roy Johnson
                 y;   gdnson

                 APPROVED FOR THEiAlTORNE!?O=
                 BY: T. B. Wright




                                c

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