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


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