Case Information
*1 February 27, 1939 Honorable Robert F. Cherry Basque County County’ Attorn‘ey,
Merldlan, Texas bear Pk. Cherry: Opinion ‘No. O-350
Re: Authority. of Commissioiiers I Court to compromise cIa.lm for excea fees retained by County Treasurer YoW’letter of February. 11th addieasea to.Honor&ble GeraId C. Mann, Attorney General of Texas, ~has been Pecelved i’or attention by this Department. Pour request for en opinion, - cbhtdlnea in two questions compritilng the second end third
paragrapha of your letter; reads aa follows:
‘%a8 the County CommisaLoner’s Court 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--the bounty? Putting the aame question in another way, may the Commlssl.oner~a Court of the County, in a cab6 uhere. the County Treasurer haas retained 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’.County Treasurer ena the, sureties on his official bond, ‘pagable in monthly installments 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 ipayment of 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 Constitution end Laws of the State. Article Section *2 .I.. Hon. Robert F. Cherry, February 27, 1939, page 2 18 of the Constitution of Texas, reeds, in part, es follows:
"The county commlsslbnera i!o‘choaenr with' ~,the county juage; es presfafng officer;shelI Ooinpose the County ComiUsslofi~eri CoUrt,~whYch &hall exbrclse aiich potiBrs etid jurlsaICtIon av&+ hll bounty bus-. lfiCss;ea~ Is cbnferred by thIs'conbtXtutXon arid '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%s of.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, ~to be approved by ttie conimlatiIone?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 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$on apea not confer upon the CoismIssldn~ra~ Court any general authorltg over the county business but tier&y gives them such special powers and jurIsdIi$Ion~ov%r~ell b'iuntf business as Ia conferred by the Cdfiat~tutIon"I.taelf end the laws of the State; or as mIgk& be thereafter reacrlbea.
County v. Lampeaes Count 90 Tex. 603, 0 s I? 403' PO;&3 . . ; . Campbell et al, 48 S.W.m, 2) 515.. ,f'
A debt firea ln amourit cannot be dlscherged by'peyment' hnd acceptance of a less amount; payment and acceptance of such aihohnt'furnlshea no consIderetlon fori the rell ulsbment of the balance owing. .Gr%er v. Hunt 'County 249 S.W. "IT 31, Rev. Bunt County v. Greer, 214 S.W. (Clv. App.j 605.
A county or the 3uccesaor of the official can a8 a rule accept itioriey only on settlement with such official. 15 Corpus JUr., paragraph 190, p. 517.
The aaceptance of notes in lieu of cash by the Commis- sioners' Court woula not be euthorlled as a surety bond of the Cdiinty 'PreasuPer would in such insknbe, If %Uthorie%d,‘be re- leased; We have been uniXble to find'ang stetutbry authority for such action bn.th6 part of~'~th%,CMunIsslon%r~~~~Court over obligations due e .countjyi‘-. It Bppeara.that the.cese of Blend . et al v. Crr, County Judge, founa In 90 Tex. 492, 39 S.W. 558, *3 - . . .
Hon. Robert F. Cherry, February 1939, Page Is ample end dir&t authority upon the questioiis presented h~ere- In. .We would llke to poFnt out that In the'Bled case, supre, Chief Justlce Gaines made mention of the fact that It wtis not shown whether the amount involved in that case could have been- made by execution of the sureties on the appellant's (Treasurer) official bond or not.
It Is, therefore, the opinion of this Departm&t that the Commissioners' Court would not be authorized to accept a note in lleu of cash belonging to the courity end tilewfully' retained by the County Treasurer. We conclude that the'tibove ruling disposes of the necessity of our answering your second question.
Yours very truly ATTORNEYGENEZALOF TEXAS By s/Wm. J. R. King Wm. J:'R. King Assistant WJRK:Bt:wc
Approved:
s/Gerald C. Maim
Attorney General of Texas