GERALD C. MANN

Attorney General OFFICE OF THE ATTORNEY GENERAL

June 13, 1939

,Hon. P. L. Marquess County Auditor Wharton County Wharton, Texas
Dear Sir: Opinion No. O-902 Re: Who should pay the bonds of the county treasu,rer, justice of the peace, constable, county commissioners, county surveyor, c,ounty auditor, county librarian, and the superintendent of the county hospital and their deputies ?
Your request for opinion upon the above stated question has been received by this department,

The population of Wharton County, Texas is twenty-nine thousand six hundred and eighty-one (29,681) inhabitants , according to the last preceding Federal census. Therefore, the county officers are subject ~tothe Officer’s Salary Law. You did not inform us as towhether or not the precinct officers of the county are on the salary system or on afee basis.

Article 3883, Revised Civil Statutes ofTexas, inpart, reads as follows:
“Maximum fees - Except as otherwise provided inthis Act,

the annual fees that may be retained by precinct, county and district officers mentioned inthis Article shall be as follows:....” (The officers mentioned inthis article are county judge, district or criminal district attorney, sheriff, county clerk, county attorney, district clerk, tax collector, tax assessor, assessor and collector of taxes, Justice ofthe Peace and constable.) Article 3891, Revised Civil Statutes ofTexas, in part, reads as follows: “Disposition offees - Each officer named in this chapter

shall first out of the current fees ofhis office pay or be paid the amount allowed him under the provisions ofArticle 3883, together with the salaries ofhis assistants and deputies, and authorized expenses under Article 3899, and the amount necessary to cover costs ofpremium onwhatever surety bond may be required by law....”Hon. P. L

.Marquess, J&e 13, 1939, Page 2

Article 3899(a), Revised Civil Statutes ofTexas, in part, reads as follows: “Expense account - A,t the close ofeach month ofhis tenure

of office each officer named herein,who is compensated ona fee basis shall nake as part ofthe report now required by law, an itemized and sworn statement ofall the actual and necessary expenses incurred by him in the conduct ofhis office, such as stationery, stamps, telephone, premiums on officials’ bonds, including the cost of **surety** bonds for his Deputies, etc.....” Article 3899(b), Revised Civil Statutes ofTexas, in part, reads as follows:
“Each officer named inthis Act, where he receives a salary

as compensation for his services, shall be empowered and permitted topurchase andhave charged to his county all reasonable expenses necessary in the proper and legal condu,ct ofhis office, premiums and officials’ bonds, etc.....” Opinion No. O-204 of this department holds that the commis,sioners’ court does not have the authority to pay premiums on the official surety bond of the county **treasurer.**

Opinion NO. 056 of this department holds that the county is not authorized to pay the premium on official bond for the members of tie commissioners’ court.

Opinion No. O-06 ofthis department holds that the premium on the official ‘bond of the county auditor should not be paid by the county.

Opinion No. ‘O-56, cited above, further holds that in counties inwhich precinct officers are on afee basis, the county is not liable to pay premiums on officials’ bonds of precinct officers.

County **treasurers,** county commissioners, county surveyors, county auditors, county librarians and superintendents of county hospitals are not fee officers named inArticles 3883, 3891 and 3899, Revised Civil Statutes ofTexas and do not come within the provisions of the Officer’s Salary Law, whereby the expense ofpremiums on their official bonds could be legally charged up as an expense of office to be paid by the county.

Constables andjustices ofthe peace are precinct officers ofthe county and are named inArticle 3883, Revised Civil Statutes ofTexas. The comni ssioners’ court, by proper order, at the proper time, may place thejustices of the’peace and constables of the county ona salary basis. Conference opinion No. O-516 of this department holds that the commissioners’ court has to place all **justices** of the peace andall constables of the county on a salary basis or leave all ona fee basis. Ifthejustices of the peace and the constables of the county are placed on a salary basis by the commissioners’ court inthe manner outlined by law, then it is the duty ofthe Commissioners’ **co,urt to**  pay the premium on the official bonds of thejustices of the peace and the constables **out** of the Officer’s Salary Fund of the county. Ifthejustices of the peace and constables are on a fee basis the county is not liable for the premiums on their official bonds. However, the.

H~on.P. L. Marquess,‘June 13, 1939. Page 3

justices of the peace and constables may pay same out oftheir excess fees of office as a legal expense.

Therefore, you are respectfully advised that it is the opinion of~this~ department that the county treasurer, county commissioners, county surveyor, county auditor, county librarian and the superintendent ofthe county hospital and their deputies, should personally’pay the premlum on their official bonds. You are further re~spectfully advised that It is the opinion of this department that itwould be improper and illegal for’the county to pay,the’premium on the official bonds of the county treasurer, county commissioners, county surveyor, county auditor, county librarian and the superintendent ofthe county hospital and their deputies.

You are further respectfully advised that ifthe constables andjustices of the peace are placed onthe salary basis, then it is the duty of the county to pay the premium on the official bonds of thejustices of the peace, constables and their deputies. You are **further** respectfully advised that if the constables and thejustices of the peace are onafee basis then Itwould be illegal and improper for the county to pay the premium on the official bonds of thejustices of the peace and constables and their deputies. You are further respectfully advised that.it is the opinion of this department that ifthe constables and justices of the peace are ona fee basis than, in that event, the constables and justices of the peace and their deputies may pay the premium on their official bonds out of their excess fees ofoffice as legal expenses.

Tr,usting that this answers your inquky, we are Very truly **yours** ATT~RNEYGENERALOFTE~AS
BY

Wm. J. Fanning Assistant
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APPROVED:

ATTORNEY GENERAL OF TEXAS