Honorable Vernon D. Adcock Opinion No. WW-1142
County Attorney
Dawson County Re: Construction of Article
Lamesa, Texas' 1645, Vernon's Civil
Statutes, relative to
appofntment of a County
Dear Mr. Adcock: Auditor for Dawson County.
You state in your request for an opinion that the
population of Dawson County according to the 1960 Federal Cen-
sus was 19,185; and, the 1960 tax valuation, the last approved
tax roll, was $24,379,350. Also, you state that the county.
lies within only one judicial district, the 106th. Finally,
you point out that a County Auditor has never been appointed
In compliance with Article 1645, Vernon's Civil Statutes, and
that Dawson County during all of the period since It came
under the provisions of this Article has continued with an
annual audit being made by contract between an out of county
auditor and the County Commissioners Court. The costs of
this audit have been much less than the anticipated salary
of a county auditor.
In view of the foregoing circumstances, you ask the
following questions:
1) May the Judge of the 106th District Court further
delay the appointment of an auditor for Dawson County?
a. If so, how much longer may he delay such ap-
pointment?
2) What, 9f any, are the legal penalties or hazards
which might result by delaying such appointment?
.
Article 1645, Vernon's Civil Statutes, as amended
In 1955, provides, In part, as follows:
"In any county having a population of 35,000
inhabitants or over according to the last preced-
ing Federal Census, or having a tax valuation of
$15,000,000 or over accoriiing to the last annroved
tx As. there shall be nnointed everv two vears
an audltor of accounts andaflnances, the title of
said office to be County Auditor, who shall hold
.
'Honorable Vernon D. Adcock, Page 2 (WW-1142)
his office for two years and who shall receive as
compensation for his services an annual salary
from the County General Fund of not more than the
amount allowed or pa-idthe Assessor-Collector of
Taxes in his county, such salary of the County
Auditor to be fixed and determined by the Dis-
trict Judge or District Judges making such ap-
point(nentand having jurisdiction in the county,
. . . (Emphasis added)
Attorney General's Opinion No. O-4828 (1942) held
on facts substantially identical to those presented here that
Articles 1645 and 164emade it mandatory that the Judge of the
23rd Judicial District of Texas appoint a county auditor for
Matagorda County, inasmuch as the last approved tax valuation
for the county was in excess of $15,000,000.
Also, Article 1647, Vernon's Civil Statutes, en-
titled "Appointment" provides:
"The district judges shaving jurisdiction in
the county, shall appoint the county auditor at
a special meeting held for that purpose, a major-
lty ruling; provided, that if a majority of such
judges fail to.agree upon the selection of some
person as auditor, then either of said judges
shall certify such fact to the Governor, who
shall.thereupon appoint some other district judge
to act and vote with the aforesaid judges in the
selection of such auditor. The action shall then
be recorded In the minutes of the district court
of the county and the clerk thereof shall certify
the same to the commissioners court, which shall
cause the same to be recorded in its minutes to-
gether with an order directing the payment of
the auditor's salary." (Emphasis added)
Because Dawson County has at present a tax valua-
tion well In excess of the specified statutory amount, it
clearly falls within the classification set out in Article
1645. Thus, it is our opinion that It is mandatory that
the Judge of*the 106th Judicial District, the only District
Judge having $urlsdiction over Dawson County, appoint a
regular county auditor for the county. Being cognizant of
the fact that the provisions of Article 1645 are mandatory,
it is our opinion that this appointment should be made with-
out any further delay.
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Honorable Vernon D. Adcock, Page 3 (W-1142)
County Commissioners Courts are of limited jurisdic-
tion In that their authority extends only to matters pertaining
to the general welfare of their respective counties, and that
their powers are only those expressly or impliedly conferred
upon them by the Constitution or the Statutes of the State.
11-B Tex.Jur. 83, Counties, Sec. 65.
We have found no constitutional or statutory pro-
vision that either expressly or by implication confers the
authority upon the Commissioners Court of counties of the
classification of Dawson County to appoint or otherwise con-
tract with an auditor to audit the accounts and finances of
the county.
In answer to your second question, we direct your
attention to Articles 5964 and 5965, Vernon's Civil Statutes,
which provide for the removal of a District Court Judge for
willful neglect of duty or official misconduct.
SUMMARY
Article 1645, Vernon's Civil Statutes, makes
It mandatory that the Judge of the 106th Judicial
District Court, Dawson County, appoint a regular
county auditor. This appointment should be made
without further delay In that the failure to do
so may result In removal procedeeings under Artl-
cles 5964 or 5965, Vernon's Civil Statutes.
Yours very truly,
WILL WILSON
IRWjr:mm/ds
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Vernon Teofan
Bob Shannon
Iola Wilcox
REVIEWEDFOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.