The Attorney General of Texas 

March 27, 1980 

MARK WHITE 

Attorney General 

Honorable Henry Wade Opinion No. MW-156 

Dallas County District Attorney 

Sixth Floor, Records Building Re: Payment of premiums for 

Dallas, Texas 75202 county clerks’ statutorily required 

errors and omissions policy. 

~Dear Mr. Wade: 

You have requested our opinion cm the foRow&g questions: 

L Since House Bill No. 1774 and Senate Bill No. 824 

of the 66th Legislature do not provide that the 

premiums for the errors and omissions insurance 

coverage is additional compensation for services of 

the County end District Clerks, may .the 

Commissioners Court pay out of the general fund of 

the County the premiums fcr the errors and omissions 

insurence required by House Bill No. 1744 and Senate 

Bill No. 824 Acts of 66th Legislature 1979? 

., 

2. If the Commissioners Court cannot legally.pay the 

premiums for the errors and omissions coverage as 

provided for in the above referenced legislation, are 

the requirements of House Bill No. 1774 and Senate 

Bill No. 824 that the County and District Clerks 

obtain such errors and omissions insurance null and 

void end without force and effect? 

Section 5 of article 1937, Revised Civil Statutes of Texas was amended 

by House Bill 1774, Acts 66th Leg., 1979, ch. 397, at 872, to read as follows: 

Sec. 5. The premiums for the bonds and the errors and 

omissions policies required by this Act to be given, or 

to be obtained by the county clerk of each county 

shall be paid by the Commissioners Court of the 

county out of the general fund of the county. 

With respect to the source of premium payments, this current section 5 is 

StIbStantiaRy similar to section 4 of article 1937, as it was amended by House 

Bill 125, Acts l965,59th Leg., ch. 456, at 941, which states: 

P. 501 
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Honorable Henry Wade - Page Two (Nk+156) 

Sec. 4. Each county clerk shall obtain an errors and omissions 

insurance policy, if the same be available, covering the county 

clerk and the deputy or deputies of the county clerk against 

liabilities incurred through errors and omissions in the performance 

of the official duties of said county clerk and the deputy or 

deputies of said county clerk; with the amount of the policy being 

in an amount equal to a maximum amount of fees collected in any 

year during the previous term of office immediately preceding the 

term of office for which said insurance policy is to be obtained, but 

in no event shall the amount of the oolicv be for less than Ten 

Thousand Dollars ($10,000). The premiums “for said insurance shall 

be paid out of the funds of the county by the Commissioners Court 

of said county. (Emphasis added). 

In Attorney General Opinion C-506 (19651, this office ruled that the ‘last sentence of 

section 4 violated the Texas Constitution. This analysis was based on the principle that a 

county is not responsible for the misfeasance or wrongdoing of its officers or agents. 

Hence, the use of public money to insure against losses which are not the ~county’s 

responsibilities would be a grant of public money prohibited by section 51 and section 52 of 

article Ill of the Texas Constitution. 

Attorney General Opinion C-607 (1966) followed the line of reasoning in C-506 (1965) .~ 

to the conclusion that the same sections of the Texas Constitution also prohibited the 

county’s payment of a short term cancellation premium for a policy of errors and 

omissions irwurance procured by the County Clerk of Taylor County pursuant to section 4 

of article 1937. 

,. ., 

Section 4 of article 1937 was amended by House Bill No. 1134, Acts 1969, 6lst Leg., 

ch 561, at 171L The provisions concerning the payment of policy premiums were placed in 

a new section 5 of article 1937, which stated: 

Sec. 5. The premiums for the bonds and the errors and omissions 

policies required by this Act to be given, or to be obtained, by the 

county clerk of each county shall be paid by the Commissioners 

Court of the county out of the general fund of the county as 

additional compensation for the services of the county clerk a 

which additional compensation shall be cumulative of and to all 

other compensation presently or hereafter authorized for said 

county clerk. 

Id at 1712. (Emphasis added). 

- 

In Attorney General Opinion M-441 (l969), this office considered the addition of the 

emphasized language reciting that the premium for errors and omissions insurance shall be 

considered as additional compensation to the county clerk, and held that: 

such use of public funds falls squarely within the prohibitions of 

Sections 51 and 52 of Article III of the Constitution of Texas. This 

p. 502 
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Honorable Henry Wade - Page Three (~~-156) 

recitation &es not alter the fact that public moneys are being used 

to accomplish an unauthorized purpose; that is, to discharge a 

liability which is not the responsibility of the county. 

Id at 3. 

- 

In Attorney General Opinion H-1042 (1977) this office reconsidered the validity of 

the 1969 amendment to section 5 of article 1937, and found it constitutionally acceptable, 

saying: 

The payment of the premium here is legislatively directed and is 

authorized specifically as additional compensation for the county 

clerk. We know of no constitutional restriction on such legislative 

action. Tex. Const. art. 3, S 44; art. 5, S 20; art. 16, S 6L See B rd 

-+ ,,..,. :,.~,, v. City of Dallas, 6 S.W.%d 738 (Tex. Comm’n App. 1928, op nion 

adopted); Attorney General Opinion WW-1101 (l96lh see also Wichita 

276 S.W.2d 509 (Tex. 1954). ln our z 

By pay, and is required to pay, the premium 

for the errors and omissions policy which article 1937, V.T.C.S., 

requires the Dallas county clerk to obtain. Attorney General _a ~’ ‘~ 

Opinion M-441 (1969) is overruled. 

. 

Id at 4. This view finds further swport in Attorney General Opinion WW-731 (1959) 

-mllg the use of county funds to provide hospitalization insurance for county officials 

and employees. The opinion stated that “as long as this insurance is part of the 

compensation of the employees and there is statutory authority for such expenditures the 

county may pay all or part of the premiums”, & at 3. See also Attorney General Opinion 

M-989 (1971). 

The present section 5 of article 1937, quoted above at psge 1, fails to state that the 

premiums to be paid by the commissioners court out of the general fund of the county are 

to be additional compensation to the county clerk; thus, it violates sections 51 and 52 of 

article Bl of the Constitution of Texas under the reasoning of Attorney General Opinions 

C-506 (1965) and c-607 (1966). 

Haviw ruled that sections 51 and 52 of article III of the Texas Constitution prohibit 

Dallas County Commissioners Court from paying the premium on errors and omissions 

insurance for the Dallas County Clerk ss required by the current section 5 of article 1937, 

it is necessary for us to determine the effect of the invalid section 5 on the remainder of 

the current version of article 1937 and on the prior version of section 5. 

It is a rule of Texas law that if part of any act is invalid, it does not destroy the 

entire act unless the invalid part is so intermingled with all parts of the act as to make it 

inseparable. Sharber v. Florence, 115 S.W.2d 604 (1938); Empire Gas & Fuel Co. v. State, 

47 S.W.2d 265 (1932); Vernon v. S 

1966, writ rePd n.r.e.m 

tate, 406 S.W.2d 236 (Tex. Civ. App. - Corpus Christi 

Freeman v. S 

writ r&d); In re JohnsoDU, -...‘. 

wan, 143 S.W. 724 (Tex. Civ. App. - Bl Paso 1912, 

CA R w 

569 S.W.2d 882 (Tex. 1978). 

2d 775 (Tex. Civ. App. - Corpus Christi 19771, aff’d, 

p. 503 
Honorable Henry Wade - Page Four (~~-156) 

In addition, if the constitutional and unconstitutional portions of an act may be 

separated, this must be done, so as not to permit the invalid part to destroy the whole. 

San Antonio Ind. Sch. Dist. v. State, 173 S.W. 525 (Tex. Civ. App. - San Antonio 1915, writ 

ref’d); City of Taylor v. Taylor Bedding Mfg. Co., 215 S.W.Zd 215 (Tex. Civ. App. - Austin 

1948, writ ref’dl; In re Johnson, srpra. 

The invalid portion of article 1937 is only that one paragraph regarding the source of 

the payment of policy premiums, therefore it can and should be separated from the 

remainder of article 1937. The requirement of section 4 of article 1937 that a county clerk 

obtain an errors and omissions insurance policy remains valid 

The invalidity of the present section 5 of article 1939 not only fails to nullify the 

rest of the statute; it leaves unaffected the constitutionally valid provisions of its 

predecessor, the 1969 amendment to section 5 quoted at 3 above. This rule of statutory 

construction was first stated by the Texas Supreme Court in Culberson v. Ashford, 18 

S.W.2d 585 fl929) and hit was recently followed in In re Johnson, supnt. In Johnson, the 

court found that paragraph 3 of the 1975 amendments to article 2324, V.T.Cwated 

the Texas Constitution, and citing Culberson, the court held that “this means that 

paragraph 3 of the 1961 amendment to Article 2324 (the prior law) remains in effect.” 

Johnson, supra, at 787. 

In this case, the prior law is the 1969 amendment to section 5 of article 1937, which 

we have held constitutionally permissible in Opinion H-1042 (1977). Under the rule of 

Culberson, this provision remains effective authority for Dallas County to continue to pay 

the premium for the required policy of errors and omissions insurance as additional 

compensation for the services of the county clerk. 

SUMMARY 

Section 5 of article 1937, Revised Civil Statutes of Texas, as 

amended by House Bill 1774, Acts 66th Leg., 1979, ch 397, at 872, 

violates the Texas Constitution, article III, sections 51 and 52 

insofar as it authorizes the. commissioners court to expend public 

money for premiums to insure the public sgainst errors and 

omissions of the county clerk and his deputies. Attorney General 

Opinions C 506 (1965) and C-607 (1966). The prior version of 

section 5, article 1937 remains valid authority for Dallas County 

Commissioners Court to pay the premiums on the required errors 

and omissions insurance as additional compensation to the county 

clerk. 

s.ud@-- 

MARK WHITE 

Attorney General of Texas 

P. 504 
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Honorable Henry Wade - Page Five (NW-1561 

JOHN W. PAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Ed Garvey 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Walter Davis 

Bob Gammage 

Susan Garrison 

Ed Garvey 

Rick Gilpin 

p. 505