# The Attorney General ofTexas
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. ~DearMr.Wade: Youhave requested our opinion cmthe foRow&g questions: L Since House Bill No. 1774and 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. 1744and Senate Bill No. 824Acts of66th 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 5of article 1937,Revised Civil Statutes ofTexas wasamended by House Bill 1774,Acts 66th Leg., 1979,ch. 397, at 872, to read asfollows:

Sec. 5.The premiums for the bonds and the errors and omissions policies required bythis 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 ofthe general fund ofthe county. With respect to the source of premium payments, this current section 5 is StIbStantiaRy similar to section 4of article 1937,as it wasamended by House Bill 125,Acts l965,59th Leg., ch. 456, at 941,which states:

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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 isto beobtained, 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 ‘lastsentence of section 4violated the Texas Constitution. This analysis wasbased 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 agrant ofpublic money prohibited bysection 51and section 52of article Ill ofthe Texas Constitution. Attorney General Opinion C-607 (1966)followed the line ofreasoning inC-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 1937was amended by House Bill No. 1134,Acts 1969,6lst Leg., ch 561,at 171LThe provisions concerning the payment ofpolicy premiums were placed in anew section 5of 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 51and 52of Article IIIof the Constitution of Texas. This

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recitation &es not alter the fact that public moneys are being used to accomplish an unauthorized purpose; that is, to discharge a liability which isnot the responsibility ofthe county. Id at 3. - In Attorney General Opinion H-1042 (1977)this office reconsidered the validity of the 1969amendment to section 5of 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. Weknow of no constitutional restriction on such legislative action. Tex. Const. art. 3, S44; art. 5, S20; art. 16,S6L See B rd -+ ,,..,.:,.~,, v. City of Dallas, 6 S.W.%d738 (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 Bypay, and isrequired 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)isoverruled.

. 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 5of article 1937,quoted above at psge 1,fails to state that the premiums to be paid bythe commissioners court out of the general fund of the county are to be additional compensation to the county clerk; thus, it violates sections 51and 52 of article Blof the Constitution of Texas under the reasoning of Attorney General Opinions C-506 (1965)and c-607 (1966). Haviw ruled that sections 51and 52of article IIIof the Texas Constitution prohibit Dallas County Commissioners Court from paying the premium on errors and omissions insurance for the Dallas County Clerk ss required bythe current section 5of article 1937, it isnecessary for us to determine the effect of the invalid section 5 on the remainder of the current version ofarticle 1937and onthe prior version ofsection 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 sointermingled with all parts of the act as to make it inseparable. Sharber v. Florence, 115S.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, 143S.W. 724 (Tex. Civ. App. - BlPaso 1912, CARw 569 S.W.2d 882(Tex. 1978). 2d 775 (Tex. Civ. App. - Corpus Christi 19771,aff’d,

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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, 173S.W.525 (Tex. Civ. App. - San Antonio 1915,writ ref’d); City ofTaylor v. Taylor Bedding Mfg. Co., 215S.W.Zd215(Tex. Civ. App. - Austin 1948,writ ref’dl; Inre Johnson, srpra. The invalid portion of article 1937isonly that one paragraph regarding the source of the payment of policy premiums, therefore it can and should be separated from the remainder ofarticle 1937. The requirement ofsection 4of article 1937that acounty clerk obtain an errors and omissions insurance policy remains valid The invalidity of the present section 5 of article 1939not only fails to nullify the rest of the statute; it leaves unaffected the constitutionally valid provisions of its predecessor, the 1969amendment to section 5quoted 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 hitwas recently followed in In re Johnson, supnt. In Johnson, the court found that paragraph 3of the 1975amendments to article 2324, V.T.Cwated the Texas Constitution, and citing Culberson, the court held that “this means that paragraph 3 of the 1961amendment to Article 2324 (the prior law) remains in effect.” Johnson, supra, at 787. In this case, the prior law is the 1969amendment to section 5of 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 ofthe 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 1937remains 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. 

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MARK WHITE Attorney General ofTexas

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JOHN W.PAINTER, JR. First Assistant Attorney General TEDL.HARTLEY Executive Assistant Attorney General Prepared byEdGarvey Assistant Attorney General APPROVED: OPINION COMMITTEE C. Robert Heath, Chairman Walter Davis BobGammage Susan Garrison EdGarvey Rick Gilpin

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