                                        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
