THEAITORNEY GENERAL 

OF TEXAS 

GROVER SEILERS 

AUSTXN 11. TE- 

*TrORNEY GENERAL 

Honorable J. C. Hamilton 

County Auditor 

Ector County 

Odessa, Texas 

Dear Sir: Opinion No. o-6418 

Re: Is E&or County liable to a County 

Commlasioner who was inducted into 

the military service for his 

salary while in the military aervice from October 15, 1944,"to 

December 31, 1944? Ana related 

questions. 

Your request for an opinion on the above matters has 

been received ana carefully considered. We quote said request 

as follows: 

"I am submitting herewith the following questions for construction and application, to-wit: 

"The facts are that the Commissioner of Precinct No. 4 of Ector County, Texas, was inducted 

into the Unlted States Navy. He did~ not resign 

hia office as Commissioner when he was Inducted. 

The County Judge of Ector County, Texas, after 

the induction of the Commissioner declared the 

-office vacant and appolnted a aucceasor to the 

absent Commissioner. The aucceaaor filed hla 

bond and otherwise duly qualified himself to act 

as Commlsaloner, and did act as such Commiaaioner from on or about the 15th day of October, A.D. 

1944 to the 31st day of December, A.D. 1944, at 

which time the term of the Commissioner expired 

(the Commisaioner~ of Precinct No'. 4 who was lnducted into the Navy was not a candidate for reelection to office). The county paid the salary 

of the absent Commissioner for the two and onehalf months that he served to the succesao??. 

"The Commissioner who was Inducted into the 

military 'service has made demand upon the county 

for the payment of his salary. 
Honorable J. C.,Hamilton, page 2 o-6418 

(1) * 

"I submit to you the following questions: 

Is Ector County liable to the Commissioner 

who was inducted into the military service for 

:;;43"':g 

from October 15, 1944 to December 31, 

If the answer to the foregoing question is ln'the affirmative, then, who is liable 

to the county for the payment of'the salary paid 

to the person who was appointed as successor to 

the Commissioner who was inducted into the military service? (31. If the answer to the first 

question is in the negative, then, is the action 

of the inducted Commissioner for the recovery of 

hl~a salary against the Commissioners' Court or 

against his successor to whom the salary was paid? 

"I'have carefully considered your Opinion No. 

O-5245, and from such opinion it may be determined 

that the appointment of the Commissioner to succeed the Commissioner who had been inducted into 

the military service was absolutely void and of 

no effect, and that the Commissioner who was inducted into the military service was entitled to 

the compensation incident to the office.' On page 

4 of the Opinion No. O-6245 the second paragraph 

reads as follows: 

"'It is well settled that salary 

for compensation of an officer la incldent to the office, and not dependent 

upon services actually performed by 

such officer. It is obviously true 

that compensation should In no event 

be uald to two County Commissioners 

for-the same time, f'br the same precinct.' (Underscoring mine) 

"From a construction of the entire opinion 

It would appear that there would be no question 

about the payment of the compensation of the office to the Commissioner who was inducted into 

the"mllitary service, but the second line of the 

paragraph above quoted states that compensation 

should not be paid to two County Commiaslbners 

for the same time,for the same precinct, and 

since the county has paid the compensation once 

the question has arisen as to whether or not it 

can be paid again. 

"It would' seem that if the appolntment~ of 

the successor was absolutely void then the pay- 
Honorable J. C. Hamilton, page 3 o-6418 

ment of the salary to this suctieasor was payment 

to a~ total stranger, so to' speak; although such 

payment was made In gOOa faith, and would thereby 

render the- Commissioner's Court liable for an 

unlawful payment. But the case~of Welch vs. Kent, 

153 S.W. 2nd 284 would dontradlct this principle 

where the payment was made In good faith. 

"Your construction and application of your 

Opinion No. 0-6245 under'theae circumstances 

would be greatly appreciated." 

You are correct in your conclusion that it may be determined from our Opinion No. O-6245 that the appointment of'the 

commissioner to suceed the commissioner who had been inducted 

into ,the military service was absolutely void and of no effect, 

and that the commissioner who was inductedinto the military 

service is entitled to the compensation lncldent to the office. 

It is our opinion, therefore, that your first question should 

be, and it is, answered in the affirmative, and that E&or County 

Is-liable to 

tary service 

31, 1944. 

the commissioner who was inducted Into the miliforhis salary from October 15, 1944, to December 

It 

graph quoted 

was intended to hold b$the second llne"of the paraby you from said Opinion No. O-6245 "that compen- . aatlon shbuld In no event be paid to two county commlsalonera 

for the same time', forthe-'same precinct", that the county~would 

notbe legally~liable to make such payments. However;'slnce 

Ector County has paid such salary to the commissioner appointed 

by the'county judge a8.a successor to the absent comml'ssioner,~' 

which appointmentwas absolutely void, the payment of such salary 

to himwas, as stated by you, payment to a total stranger, so 

to speak, but such pagment would not affect the liability of the 

county to pay such salary to the commisaloner legally'entltled. 

thereto. This might cause the county to pay such salary-twice, 

but it would have its cause of action for such illegal payment 

against those responsible therefor, as well as against the appointed commissioner who received same. 

As to your second question, we adopt and quote the 

following from our Opinion No. O-4715: 

“Art~icle 2340 of the Revised Civil Statutes 

of Texas, relative to bonds as shall be executed 

by County Commissioners, contains In part the 

following provisions: 
Honorable J. C. Hamilton, page 4 o-6418 

0 1 

. a . * conditioned for the falthful'performance of the duties of his office, that 

he will pay over to his county all moneys Illegally paid to him out of county"funds; as 

voluntary payments or otherwise, and that he 

will not'vote or give'hlsconsent to"pay out 

county funds except for lawful purposes.' 

If . . . . . 

"'Under the terms of the."statute hereinabove 

referred to (Artlcle'2340), each commissioner was 

required to execute a bona conditioned for the' 

TaithfBl performance of the duties'of his-'office 

and that he wbuld pay over to his County all 

moneys 'illegally paid to him out of county funds, 

as voluntary payments or otherwise.' The law 

under which payments of ,salarles were made'~to 

the Commissioners of Hays County over and above '~ 

the sum of $1400.00 per year being unconstituional, 

all sums paid to each of them In excess of said 

$1400.00 per year were illegally paid; therefore, 

each of said Commissioners is liable to repay 

such excess salaries so paid. to him,"and lt~ is the. 

opinion of this department, and you are so advised, 

that each of said Commissioners is liable for all 

sums paid to him over ana above the $1400.00 per 

year provided by law. 

"In further support of this conclusion, we 

direct your attention to then case of Kitchens 

et al v. Roberts, County Treasurer, 24 S.W. (2) 

464. This was a suit by the County Treasurer of 

Wood County to recover of a county commia'sioner 

aiid the surety on his bond certain sums paid to 

,said commissioner in excess of the amount due 

him under the general law. Sala sums were demanded by and paid to said commissioner by authority of a special act of the Legislature, and the 

suit to recover same was on the theory that the 

Legislature was without power to provide by said 

special act for the payment to a'county commissioner for his services as such a sum in excess 

of that fixed by general law. The trial court 

sustained this cohtention, held said special act 

uncohatitutional and gave plalntlff judgment for 

the amourit sued for. Thlasjudgment was affirmed' 

by the Court of-Civil Appeals and application for 

wrlt“of error was refused by the Supreme Court. 

See also Duclos et al. v. Harris County, 251 S,W. 
Honorable J. C. Hamilton, page 5 o-6418 

569, affirmed by Supreme Court, 263 S.W. 562. 

The case of Cameron County v. Fox, 2 S.W. ~(2) 

433, was a suit by a county to recover from a 

tax collector premiums on bonds theretofore allowed to him by the commissioners court, and 

the Commission of Appeals held that, notwlthstanding the payment tb the tax collector was 

voluntarily made; the amount so paid could be 

recovered in an action by the'~county as said payment was made without lawful authority. 

"As to the liabilltg of each Individual Commissioner under that part of his bona which provides 'that he will not vote or give his consent 

to pay out county funds except for lawful purposes,' 

for the excess salaries' paid to each of the other 

commissioners over and above said $iqOO.OO per 

year, we refer you to the rules of law laid down 

in the case of Welch et al. v. Kent et al., 153 

S.W. (2) 284. ,This was a suit by the County 

Treasurer of Jefferson County against the County 

Commissioners of said County to recover the amount 

of certain claims against the County which were 

alleged to have been paid by said Commissioners 

without authority of law, and that, as to said 

Commissioners, their said act constituted a voting 

and consenting to the payment of funds and moneys 

out of the county funds for unlawful purposes, 

and that said Commlsalonera neglected In said particulars to faithfully perform and discharge the 

duties required of them. The trial court rendered 

judgment in plaintiff's favor, and the Court of 

Civil Appeals reversed and rendered said judgment 

on the ground that, 'in voting "to pay out such 

county funds," a county commissioner is not liable'when actuated by pure motlvea, but only when 

he acts mallciouslg or corruptly, or under circumstances imputlng'malice or corrupt motives. 

He Is not liable to his county for his' judicial 

acts, no matter how erroneous In law may be his 

judicial decision, so long as he acts in good 

faith.' 

*Therefore, it is the opinion of this department that each of said County Commissioners would 

be liable for the excess salaries paid to each of 

the other Commissioners, In addition to the amount 

Individually received by him, if it can be shown 

that he acted mallcioualy or corruptly, or under 

circumstances Imputing malice or corrupt motive, 

or without good faith. . . . . . 
. 

Honorable J. C. Hamilton, page 6 o-6418 

"Article 1649 of the Revised Civil Statutes 

of Texas gives the requirements of a bona for a 

County Auditor, and same is conditioned 'for the 

yaithtil performance of his duties;' Article 

1651 of said Statute contains In part the following : 'and he shall see to the strict enforcement 

of the law governing county finances.' 

"Article 1653 provides that he shall have continued access to and shall examine:all the books, 

accounts, reports, vouchers and other records of 

any officer, the otiers of the commissioners' court, 

relating to finances of the county, etc. 

"Article 1660 of said statutes provides that 

all claims, bills and accounts against the county 

must be filed in ample time for the AuaFtor to 

examlne and approve same before the meetings of 

the commissioners' court. That no claim, bill or 

account shall be allowed or paid until it has been 

examined and approved by the County Auditor. 

"Article 1661 of said statute contains in 

part the following provision: 

"'All warrants on the County Treasurer, 

except warrants for jury service, amst be 

countersigned by the County Auditor.' 

"See also 11 Tex. Jur., Sec. 52, p. 581. 

"The rule as to when a county audltor can be 

held liable for payments of compensation paid to 

others is laid down in the case of Welch, et al. 

vs. Kent, et al., 153 S. W. (2) 284, which involves a county auditor and his successor in offlee, as well as the county commissioners, in the 

following language: 

If 1. . 0 One condition of their oath and 

bond (Art. 1649, R.C.S. 1925) was that they 

would faithfully discharge the duties of their 

office. To constitute a cause of action 

against a county auditor on his bond, the 

pleader must allege and prove that, In the 

matters charged against him he acted maliciously, corruptly or negligently, 20 C. J. 

S ., Counties, 1 140, p.. 952; these allega- 
Honorable J. C. Hamilton, page 7 o-6418 

tlons must be made by the pleader because of 

the presumption of the regularity of the official acts of the county auditor. . . . .' 

"See also the caae.of Wade vs. Board of Com'ra. 

of Harmon County, 'et' al.', 17 Pac. Rep. (2) 690, 

Supreme Court of Oklahoma. 

"vnder the statutes ana rules above referred 

to and set out, It was made the duty of the county 

auditor tb see that no payments of salaries were 

made to said county commissioners in excess of 

those provided for by law. Salaries having been 

paid to the Commissioners of Hays county in excess of those provided for by law, we hold that 

the County Auditor Is liable for all such sums so 

paid, Insofar as he acted maliciously, oorruptly or negligently In permitting said payment to 

be made. It is our further opinion, however, that 

the same rule of good faith would apply to him as 

we have hereinabove held should apply to the County 

Commisaionera, . . . . 

"The generai rule as to when the sureties on 

the bond of public officials can be held liable 

for'the action of said public officials Is laid 

down in the case of Jeff Davis County vs. Davis, 

'et al., 192 S.W. 291, writ dismissed. This was 

a suit against the sheriff and the sureties on 

his bond to recover certain sums of money paid 

to said sheriff on claims presented by and allowed 

to him that were alleged to be unjust and Illegal. 

The trial court sustained exceptions filed. as to 

aald'auretlea and dismissed the said. suit as to 

them'; Sustaining this action, the Court of Civil 

Appeals held as follows: 

If t . . . . . . 

"'And in Heldenheimer v. Brent, 59‘Tex. 

533, it was said: 

"'To charge the sureties on a sheriff's 

bond, the act complained of amst not only 

be one which he might rightfully do as sheriff, but which must be actually done by him 

as sberlff, under claim of right to do the 

act as such officer.' 

"'This statement of the law la the appllcation of a rule by which the acts of a aherlff 
Honorable J. C. Hamilton, page 

for which his sureties 

8 o-6418 

may be held liable 

can be distinguished from those acts for 

which they will not be held liable. The 

former are termed acts done "virtute officii", 

and the later "colore offlcil". The dlstinction is this: 'Acts done * virtute officii" 

are when they are within the authority of 

the officer, but when in the doing he exercises that authority improperly, or abuses 

the confidence which the law reposes in him; 

whilst acts done "colore officli" are where 

they are of such nature the office gives him 

no authority to do them. Gold v. Campbell 

54 Tex. Civ. App. 269, 117 S.W. 463, at 466. 

If It . . . . . 

"See also Miller et al. vs. Foard County, 

et al., 59 S.W. (2) 277. 

"Under these rules it Is our opinion that the 

sureties on the bond of the County Auditor wouId be 

liable for the repayment of any and all aums paid to 

said County~ Commissioners that the Auditor himself 

would be liable for the repayment of, for the reason that permitting said payments to be made to said 

County officials was in violation of the terms of 

his bond which provided for the faithful performance 

of his duties.' In other words, the acts of the 

County Auditor In approving payment of said excess 

salaries to said County Commissioners was done within his authority as such officer. Ordinarily these 

rules would prevent the sureties on bonds of said 

County Commissioners from being liable for the excess sums paid to said Commissioners, since same 

were not paid in the performance of any official 

duties on the part of said Commissioners; but, In 

becoming sureties on the bonds of said County Commissioners, said sureties agreed that said Commissioners would 'pay over to his County all moneys 

illegally paid to him out of County funds, as voluntary payment or otherwise, and that he would not 

vote or give his consent to pay out County funds 

except for lawful purposes.' This provision of 

said bonds having been violated and said bonds having embraced the liability to refund said salaries 

as for money unlawfully had and received from the 

County, we hold that the sureties on the bonds of 

said County Commissioners are also liable for any 

and all sums the Commissioners themselves will be 

liable for. 
Honorable J. C. Hamilton, page 9 o-6418 

” . . . . . . . . . . . ” 

Article 1928, Vernon's Annotated Civil Statutes, sets 

out the requirements of the bond of a county judge, one of which 

is "that he will not vote or give his consent to pay out county 

funds except for lawful purposes". 

In the case of Steusoff et al. 

S.W. (2) 643 writ refused, 

v. Liberty County, 34 

it was held that the judgments and 

orders of the commissioners court approving the~accounts of 

Steusoff, who was tax assessor of Lib~ertg County, for sums in 

excess of the actual earnings of his office were absolutely void, 

and that Liberty County was entitled to judgment against him 

for.such excess. See.also Baldwin v. Travis County, 88 S. W. 

480, writ denied, and Adams v. Stephens County, 41 S.W. (2) 989, 

writ refused. 

It Is our opinion that, under the above rules of law, 

the party appolnted by the county 'judge as commissioner to aucteed the county commissioner who was inducted into the military 

service Is liable to Ector County for the salary received by 

him, also that the county judge, county commissioners and county 

auditor" of Ector County, and the sureties ou'thelr respective 

bonds;are liable therefor, if they acted maliciously or coraptly, or under circumstances imputing malice or corrupt 

motives. 

The appointed commissioner evidently executed the both 

required by Article 2340 hereinabove referred to and, while such 

appointment was illegal and void and the sureties on said bond 

would not be liable for'the salary @aid to such appointed commlssloner under said bond as a statutory bond, since such salary was 

not received by said appointed commissioner officially, therefore, was not within the conditions of such bond, it is our 

opinion that said sureties would be liable under said bond as a 

common law obligation. In support of this conclusion, we direct 

your attention to the following: 

In the case of Hummel et al. v.' Del Qreco, 90 S.W. 

339, there was involved a cause of action againstthe principal 

and sureties on a bond couditioned on the principal therein paying to the obligee the amount of a legatee in a will on the 

establishment of said will. The execution of the bond, as the 

principal intended, defeated the obligee's right to have the estate.admlnistered and the legacy paid in'process of administration, said bond having been given voluntarily and in lieu of administration. In passing thereon, the court held as follows: 

"The probate of the will Ipso facto est,ablished the legacy bequeathed as a charge upon the 
. 

Honorable J. C. Hamilton, page 10 o-6418 

estate of the testator. The bond sued upon was 

executed to secure plaintiff, as legatee, in its 

payment, in event the'will was'probated, thereby 

fastening upon appellants the absolute liability 

to appellee upon the happening of such event. Its 

purpose was to defeat the application of appellee, 

as legatee to have an administrator of the estate 

of decedent appointed with the will annexed, and 

enable the principal in the bond, appellant Chas. 

F. A. Hummel, to obtain end-hold possession of its 

assets free from charge of administration, thus 

preventing eppellee from exercising her right to 

collect her legacy through the medium of the probate court. This purpose having been attained 

by appellant Hummel, and such right or appellee 

defeated, we can perceive no reason why appellants 

should not be bound by the court as they bound 

themselves by their bond. 

II . . . . . 

"Let it be conceded that the bond sued upon 

was not a statutory bond, and that it should not 

have effected the purpose for which It was executed; 'i.e. defeated the legatee's right to have 

the estate of decedent edministered'upon and her 

legacy paid in process of administration. It was 

nevertheless a common-law bond, end through it 

appellants' (Hummel) purpose was accomplished, 

end appellee's right defeated. The bond having 

had this effect, and being a valid and binding 

common-law obligation, appellants must be held 

to discharge the obligation Imposed upon themselves by its terms. . . . . ." 

In the case of Maddox et al. v. Hollums, 241 S.W. 

1053, the court was considering a question where the defendant 

in a sequestration proceeding had given e bond in order to hold 

possession of certain property pending litigation, but only one 

'surety signed said bond. However, the court held said bond good 

es a common-law obligation, holding thereon as follows: 

"The replevy bond in the instant suit Is 

In the levy language prescribed and has all the 

requirements of the above articles of the statute, 

with the exception that it is signed by but one 

surety, C.C. McCarthy, the appellant. The prlncipal question presented by the assignments is 

that of whether OP not the court erred in holding, 

In effect, that the bond sued upon, while not good 
Honorable J. C. Hamilton, page 11 o -6418 

es a statutory bond, was, under the facts of this 

case, good and enforceable as a common-law obligetlon. This appellant surety specially insists 

that he is not legally liable thereon at all, as 

the bond is in terms purely a statutory bond, requiredby law to be executed by two or 'more sureties, and is not binding on'one surety when executed by him alone. The practical end general 

difference between a 'common-law bond' end a 

'statutory bond' Is that the latter conforms to 

all the requirements of the statute, while the 

former does not. It is quite generally held that 

where "the terms and conditions' of the bond substantially deviate from 'the conditions' prescribed 

by a statute; or where a bond Is voluntarily given 

when notat all required by law, it Is deemed a 

common-law end not a statutory bond. ., . . . .'I 

The bond given by the appointed commissioner and his 

sureties having been a voluntary one and having had the effect 

to cause to be paid to such'commi'ssloner salary which would not 

have otherwise been paid to him, he and said sureties should be 

held liable under its terms and be required to pey~to Ector 

County the salary illegally pald to him outof'the funds belonging to such county. 

Article 1709 of Vernon's Annotated Civil Statutes Is 

as follows: 

"The county treasurer shall recelve,all 

moneys belonging to the county from whatever 

source they may be derived, and pay and apply 

the same as required by law,~ in such manner es 

the commissioners court of his county may reyi;e ;;t4direct. (Acts,,1846, p. 338; G.L. vol. 

f * ; P.D. 1097.) 

Article 1713 of said statutes Is es follow,s: 

"The county treasurer shall not pay any 

money out of the county treasury except in pursuance of a certiflcete or warrant from some officer authorized by law to issue the same; and, 

if' such treasurer shall have any doubt of the 

legality or propriety of any order, decree, certificate or warrant presented to him for payment, 

he shell not pay the same, but shell make report 

thereof to the commissioners court for their consideration and direction. (P, D. 1101.)' 
. 

Honorable J. C. Hamilton, page 12 o-6418 

In the case of McDonald et al., School Trustees, 'v. 

Farmer, County Treasurer, et al., 56 S.W. 555, the court had 

under consideration the question of the llabllity of a county 

treasurer for approving warrants payable to the county assessor 

which allowed said county assessor illegal commissions. In 

passing upon sald question, the court held es follows: 

"As to the treasurer, he paid then amount ordered by the commissioners' court upon a warrant 

drawn by proper authority. County warrants are 

prima facie evidence of an existing end's matured 

aebt. Leach v. Wilson~ Co., 62, TeX. 332; Rev. St. 

arts. 876, 852. They are prima facie valid but 

open to defenses. 1Dill. Run. Corp. 1 1 487, 502. 

It Is the duty of the county treasurer to receive 

all inoneys belonging to the county, end to pay 

and apply the same as required by law, in such inenner as the commissioners' court of his county may 

direct. Rev. St. art. 926. Mandamus will ordinarily lie to compel him to pay e cmmty warrant; 

but on account of the discretion vested in him by 

article 930 of the Revised Statutes, where he has 

any doubt of the legality or propriety of any order, decree, certiflcate;or warrant presented"to 

him for payment, not to pay the same, but to make 

report thereof to the commissioners' court for 

their consideration and direction, it has been 

held in this state that mandamus will not lie to 

compel the treasurer to pay a warrant, the payment 

of which has been prohibited by that court. Walker 

v. Barnard, 8 Tex. Civ. App, 17, 27 S.W. 726. 

In this decision the court of civil appeals for 

the Fourth district refused to follow Johnson v, 

Campbell, 39 Tex. 83, which holds that the treasurer has no discretion, but must peg a warrant 

drawn in accordance with law, and that mandamus 

will lie to compel him to do so. If, after report to the commissioners' court; it should direct 

the claim to be'paid, it may be',at least questionable if'the treasurer has any further dismetion 

as to payment. When the treasurer has no reason 

to doubt the legality or the propriety of a warrants presented to him for payment, it is his duty 

to pay it; and, having paid it in the discharge of 

his duty, he ought not to be held liable to the 

fur&out of which it has been paid. He'mst, however, act in good faith, and exercise care and 

prudence to make no payment fop which the county 

or school district should not be held liable. 

The treasurer was presumed to know the law, --that 

the assessor was only entitled to a commission 
Honorable J. C. Hamilton, page 13 o-6418 

of 1 per cent. of,the taxes levied and assessed; 

but it does not appear'that he knew what amount 

had been levied, nor what the assessed value of, 

the property In the district was, and it seems, 

also, that the warrant paid embraced other items. 

Whether or not he should be protected in the 

payment would be a fact to be determined by his 

care and good faith. He should take care to see 

that the warrant has been drawn by the proper euthority, and in accordance with law. 'He cannot 

have credit for a warrant issued for an Illegal 

claim, If he has reason to belleve that the demand 

for which It yes issued was In fact illegal. 

9 . . . . . . 

Applying the rules of law laid down in this opinion 

to the present situation, the county treasurer of Ector County, 

and the sureties on his bond, are also liable for the salary 

paid to said appointed county commissioner, unless said county 

treasurer acted in good' faith and had no reason to believe that 

the payment of said salary was illegal. 

Your first question having been answered ih the affirmative, an answer to your third question is not called for 

under the wording of your request, but, if the inducted county 

commissioner should have to file suit to.'recover' his salary,' 

such suit should be against Ector County end not against the eppointed commissioner to whom the salary was paid. 

Trusting that this satisfactorily answers your Inquiry, 

we remain 

Very truly yours, 

ATTORNEY GENERAL OF TEXAS 

JWB:mp:wc 

By s/ Jas. W. Bassett 

Jas. W, Bassett 

Assistant 

APPROVED MAR 15, 1945 

s/Carl& C. Ashley 

FIRST ASSISTANT 

ATTORNEY GENERAL 

Approved Opinlon Committee By s/BwB Chairman