February 27, 1939 Honorable Robert F. Cherry County'Attorn'ey,Basque County Merldlan, Texas bear Pk. Cherry: Opinion'No. O-350 Re: Authority.of Commissioiiers I Court to compromisecIa.lm for excea fees retained by County Treasurer YoW'letter of February.11th addieasea to.Honor&ble GeraId C. Mann, Attorney General of Texas, ~hasbeen Pecelved i'orattention by this Department. Pour request for en opinion, - cbhtdlnea in two questions compritilngthe second end third paragrapha of your letter; reads aa follows: '%a8 the County CommisaLoner'sCourt the right, power and authodty to extend to a Bounty Tredsurer and ~the susetles on hXs bond tLme iti which to pay a shortage in the accounta of such County Treasurer of funds belongfng to--thebounty? Putting the aame question in another way, may the Commlssl.oner~a Court of the County, in a cab6 uhere.the County Treasurer haasretained excess fees ena bommiasions over and above the amonnt provided end permitted by law to such County Tree- surer, accept in lieu of cash, the note of said County Treasurer signed by the'.CountyTreasurer ena the,sureties on his official bond, 'pagablein monthly installmentsover a p%riOd of a year or more or less?
"The second question: If the Cotnnk~aioner~s Court has the authority to extend the ipaymentof the shortage, as hereinabove set out, and to accept such note or notes end does do so; Is the (founty Attorney thereby relieved of the duty enjoin&i upon him by Art. ~339 of the RWired Civil gtattites to bring suit against the 'frciaaurer and suretlea on his bond es soon 88 the facts of the shortage comes to his knowledge?" The Commlasloners~ Court derives Its powers en& authority from the Constitutionend Laws of the State. Article 5, Section .I..
Hon. Robert F. Cherry, February 27, 1939, page 2 O-358
18 of the Constitutionof Texas, reeds, in part, es follows: "The county commlsslbnerai!o'choaenrwith' ~,the county juage; es presfafng officer;shelI Ooinpose CoUrt,~whYch&hall exbrclse the County ComiUsslofi~eri aiichpotiBrsetidjurlsaICtIonav&+ hll bounty bus-. lfiCss;ea~Is cbnferred by thIs'conbtXtutXonarid'the- laws of the State, or as may be hereafter, prescribed." Artlble 1704 provlalng for e bona by the County Treas- urer reads as follows: "The county treasurer before entering tipsn~the ,autl%sof.his office, end within dents days after he heS receIvea hla certificate of election, shell give a bond payable to the county judge of his county,~tobe approved by ttieconimlatiIone?s co&+; In such sum es such court may deem n6cessery, con- aitionea that such treasurer shall fkiIthfullJi'&x-- ecute the~autik of his offIc%'~eti'pay over ticcora- Ing to-la% all moneys wbloh-shell come"lnto~'Kls' hands es county treasurer, and reti& a true account ",htt"t;to said court at eabh regular term of said
The ConatItut$onapea not confer upon the CoismIssldn~ra~ Court any general authorltg over the county business but tier&y gives them such special powers and jurIsdIi$Ion~ov%r~ell b'iuntf business as Ia conferred by the Cdfiat~tutIon"I.taelfend the laws of the State; or as mIgk& be thereafter reacrlbea. ; PO;&3 . County v. Lampeaes Count 90 Tex. 603, 10 s . I?. 403' Campbell et al, 48 S.W.m, 2) 515.. ,f' A debt firea ln amouritcannot be dlschergedby'peyment' hnd acceptance of a