                                                   s51



OFFICE   OF THE   ATTORNEY    GENERAL   OF TEXAS

                     AUSTIN
y&uoreble   Albert          I. Hut-son, Jr.,   Fege   E




            The        s~clfle    questions    you aek are 8s rOii0w5:

            r. .   l    .




           *1.  ?iould the tseosurw nnii depository  bank
     be liable ou their ofYfoie1 bonds   in the event
     they should honor or pay vouchers   exeouted by the
     eohool board to the new s~erlrAendeut     under the
     ters   of his aontmct?

            WE. In ths ev6nt  the diooherged    ruperintend-
     ant should  prevail in the panding    litigation,   would
     the treasurer  emd doposltory   batuk be, in any way,
     liable for the paymmt    of vouahere properly     em-
     outed by the sohool board to the new superintendent?

            *3.  In tae event    you mlsw%r tab two forogolng
     questlons   in the OS     tire and the treasurer  and
     d8poeitory    bank irtiE rcriuar to pay the afore   eafd
     muohssa,    c5n the locel so&m01 board or n5w auper-
     latsnbent,   %lthsr or both, require    the treatsurer
     and depository    kak   to pay aaid touchers   by man)-
     damua?

           *4. II the troetwrai   and depository burk
     ilable for the nron#ul   refusal to pay rouohors
    :properly lsuued by the mhool    board?
            I . . .'"

            The statute that dsterrrinw the aaawar to these
questfont is krtiols   2852, Vernoafe Annotated Rawi8ad Clvll
$tat.utes or TOXMJ,  the arater?& parta or v.hlah mad  as rollmet

           *In my   ia&8pmdent    fflstrict of mow    t&m
     one hundred fifty (IBO) aaholastloe,       whether it
     be in a olty viaioa has aseuud      coutrol or the
     schools within its ltit.9, or a aorporation         for
     s&ho&   purposes only, end v&ether ori+niaml        111.
     der general law or created by spaolal       sat,  the
     treasurer  of tbs sohool fund shall be that per-
     aon or corpor.stion who ofitars 6atfiSffNtQry     bond
     end the best bid of interest on the mere&e          dally
     balanoes r0r the prlvllege     of act?ng 81 suoh
     treasurar,    Thhe treasurer  whan thus eeleotti
     shall serve for a tern 3f two year5 and until
F
    lionorable klbert     J. Butson,   Jr.,   Es&e   3



         his aucoeasor shall huve been duly selected and
         qualified   and he shall be required to give bond
         in an amount equal to the astlmated      amOunt of
         the total receipts coming annually into hi6 hands,
         when such bond is a rer6On61      bond! provided,    that
         when a bond 15 exeouted by B surety company or
         $6 a bond other than ct psrsonal bond, such bond
         ohall b6 In an anxxint equal to ti.% hicheslt ea-
         timated dally balenae for the current bieanium,
         to be determined   by the governin&    Mdy   of ouch
         school district; provided,     furtlior that suah ROY-
         erning body may, in lieu of the bxid herein        au-
         thorleed, aoospt a deposit of approved seouritlee,
         which sacurlticrs may include bonde of the United
         States, or of thir .,tcrte,or of any oounty, city,
         town or independent   i;ChoOl dU+triot   in the ijtate,
         or kntfclpation   Tax i;arranta and/or Antlolpatiori
         Tax Kotes legelly lsaued by the governing        body of
         such school distrlot, whioh ah&U       bar deposited   a8
         suob governing   body my   dlreot, in sn mouitt suf-
         rlcient to adequately    protect t&e rundr of eu&
         school distriot   la the hand6 of the seleoted
         !ikWl%Ul-W .

                Vrovlded, however, thtut no pre%iWa on any
         bmds     shsU   be peid out of the funds of any said
         dlstrldt     or oorporstion.   Said bond shall be pay-
         able to the president      of the board and hfs ma-
         oesaora in ofiias. oond~i4ionsd_t~~~_th~~~~




    or the bond,   withv-&f-h the trsasursl’ and the
    p4, are *the faithtul    dlechax4@e QI the trseeurerqe   duties
    and the aayraant of the funds reoe&tred bg him urn     the draft
 @norable      Abert         J. tiuteon, Jr.,      laga    4



 of tho QrWkident  of the sohJo1 board drawn UDB~ order. duly
 ezteeed. of the board of trusteea",     and that *the treasurer
 ahall s~faly kee;, and fa$thft+ullv diriburse all fund% oo%&ng
 Into hi8 handa aa~treasursr , and shall faithstilly pay over
 to his suOof~~~or all balanoes remrlirizg in his hands".

               It    i8   quite    appsrmt      thut    the     O&ly    6pMtifiO         re-
 quir%aeat     inthe bond for the tressmar       and the bank to ful-
 fill, Involved UDdar the f'aat.8you give, is that whiah re-
 quires    *the payiMnt of the fundm . . . upon the draft of
 t&e preeidsnt    OS the sohool boaxd dreva upon order . . . of
 the board of tru#teea*.       Y:e a88uma that the rouchera lasued
 to the new ouperintsndent      have beon drawn by the praaident
 of the board upon order ot the trwteeo.           The bend doea not
 require the order of the aahool boerd be a lb* 1 r o
 l'hderthe term6 of the bond the troamarer -are    an
 am4    reQuireal to eesertaia   whether  or Uot the vwoher has
 kea    drawn by the president     upon ardax'oi   the truetaaa.

               The only       requiremanta
                              ether          Zs the bond am *the
                      of the ttieuurez*J     dutlea, th6t    the traa-
                      kwp    6nd rrrft        dfebUr66    dl  furzdr"
                      $a$tQful.ly p$&         to his mooomor       all
 b6l8JW0-B".  kooordLn& to tF.e opinion 1st the aase of K.C.Y.&O.
 Qy..Co. I. Khittln&om     4~ Snoaney,   (Ten. Cir, Ap .) 155 8. i1.
 MW,   the ward *~afthtull~”    smnm VawthSuJ,l~,      D% oe~ly    and
 aepuratelyar Under the faota that ye give, wa oannet say
 tls%tthe tteaeurer   6114 the bank would not be act&i& 'faith-
 fully* by pylag the vouaher6 issued to the new auparlntandant.

             We heve been unable to find any Texas appellate
  a~rt   deaW.on   on this partiuular  question,  but the *ama ree-
. 8onsag we have followed h6M     was used in the ca6b or age f,
  Froboaee,  (T&IX. Civ. wpp.) 66 5. w". 6456, in whioh the oourt
 held   thet   s    County    Trwmwer,         whose    rtatutory        bond      n8s    oen-
 dltloaed that he would "airfsly keap and talthPully     Ulsburrre
 the (oounty) sohool fund aooerdtng    to taw"   wa@ authorixed
 to pay warrants  issued b$ th% aounty   %%ltooi 8up~rinfendenf
 that were valid on their  facre but had Man    fllqally   lbnblsd
 by the %up%rint%ndent.

               k    Kentuaky      ~886   in   point,    00. a    feat    sttuation         siml-
 3.8~to this one, la the 0888 ef i%porit                     Bank of Orwrrboro t.
 &&err    County hurt,             13, Ky.    L, 681,     15 5, Pi. OSIO, in which
 the aourt ssidr

              *!lB% benk viss not % tru%te%, but a mm-e naked
        degaaitary,   with tha agents or the aounty to super-
        Yuke its eotion.    ',hs fund was % tru&  fund, to bo
nmrebl%          Albert   J. liutson, cr.,   &age     5



          applied in a particular         way, not by the bank, but
          by the 86~ent.S Of the County.         'Lhe bank W66 required
          to know that tts bond or coupon iSSued had been
          si~$~ecl enC deli-red     --in other worda, that it Wa6
          tl ~;enuf.ne bond, nodng             ; and the mix% frict
                                          -ilore
          that it mi&ht have been au OVeXiSSrie Created no
          IlSbllity,    UnleSS 'bhere was rmia rendcollusion
          betreen t&e bank an& the committee           la en appropri-
          ation   of the  runa  to $ purpose they knewwas un-
          authorIzeA.     It is Stat@       in th6 o~@-iiou below
          that the mxmgera      of thlca fuad wore men or the
          hl.gheet order of integrityI        and thlS entire trouble
          ha6 orlg;inatsd iron     a mistaken     judgment in the @au-
          struotion of the law      under    Which they acted, . '. .*

          For the re660n6 Stated above w think 10 is alearly
the duty of the trearsurer 6nd the bmtk to pay the VQUOh6r6
166UOd,to the ileu su&mriutsndeat.

                           lie0 CO CiWQ%l the QSXtOXRMllOb OS 6&laOt
                 +“liban&lQUS
&leh       the
            law 611njoins 66 a duty resulting  fron an ofllioo or
trust”.   Z6 Tsf. Jur, 654.     Sea slso t&e aaae of Sitswart v.
~ongIo60pendent       Sehaol Eistrlot,   (T6x. cit. app.) 134 8. W.
        .

                 our snswor   to your   f%TSt     q,Wltion    is *ne*.

                 our ~ntmr    to your   seaona     quastlon     1s *ao*.

                 Our answer   to your   third     question    16 that     th6 new
SU&mi&lt6n&6nt 15 entit;lOd to OOapll the treasurer                      and the
bank to pay hi6 vouehere by mmbamU~.

           In view of our iorrgoiag anaw6r6                  we do not think
it Is u6065SSry  thet we 8wmer   your fourth                 quertlon.

                                                 ',Youro very    truly
