Untitled Texas Attorney General Opinion

! .x I [V) j ,.i OFFICE OF THE ATTORNEY GENERAL OF TEXAS i . AUSTIN t GROVER SELLERS j” ATTORNEY GENERAL mnorable John c. Larbureer C&uty Attorney, Fayette County La Grange, Texas Dear Sir: opinion No. O-62 tie: iialarg of the ou ty Auditor tt county 4l!k Your letter of Septelabe opinion of this department on the ques part, as folloW8: orden of the ing with June aet appointment July 5, 1943, ncrel Court at the 3, which orders that y, District Judge, ad- inting him as County inutee of the meeting1 approving his bond. ually approved some time in Ootober. “1 would, therefore, appreciate it very much ii you wxld give ng your opinion on the Sollowing qestions as soon as you possibly can: “1. nihen the District Judge appoints a County auditor and no salary la speoified, what ie the salary ot the OoUntyAuditor? -3. It no salary is speoitied by the District Judge when he appoints the County iiuditor, does this salary fluotuste ~eaoh year within the two year appoinf.Jlent srLould the tax valuation f luotuate? “3. In aaswering the foregoing, if the salary of the County Auditor fluctuates with the tax valuation, when does the increase or decrease of the salary of the County Auditor become effective? *4. Is it neoeasary that the Comminsionere~ Court urd approve the inoreaee of oonaent the County IluGitor*s salary above the mini- sum provided by law7 “2. iiocs the Comr~issionere~ Court have to record in their minutes their approvdl of any in- ore&&e in salary of the County Auditor above the minimum allowed by law? ” * * +n #e thank you Sor the brief submitted with your request and aypreciste your disousuion of the questione us&or oonsideration. Your brief sod discussion of the questions involved have materially aided us in passing on the questions eubmitted. Artiole 1645, Vernon’s Annotated Civil Statutes, (S. B. ll9, Aote 47th Leg., 8. S., 1941) reads as follows: “In any county having a population of thirty- five thouoana (35,090) inhabitants, or over, ao- cording to the last preceding Federal Census, or having a tax valuation of Fifteen ;liLlion ($15,000,000) Dollars or over, according to the last approved tax roll there shall be biennally appointed an auditor of accounts and finances, the title of said ofrioer to be ‘County Auditor,’ who shall hold his oftioe for two (2) years, and who shall receive as oom,penss- tion for nie eervioee to the county ae such County auditor , an annual salary of not more than the annual salary alloored or paid the Assessor and Collector of Taxes of his county, and not leee than the annual ~~~~o~~~~~“,B~~i~P,~I~4~d~~~:,~da~vt,~S~~~~,’, as aaid article existed on Jr$uary 1, 1940, such ealary of the County Auditor to be fixed and deter- mined by the 31strict Judge or Dietrict Judge8 mak- ing the appointmsnt and having jurisdiotion in the oounty, a mjorlty ruling, said annual salary to be paid monthly out of the .y,eneral fund OS the oount y. The action of said District Judge or Dls- trict Judges in deterrPining,and Sixing the S%bry of such County Auditor shall be mnde by order and recorded in the ,Xinutee OS the District Court OS the County and the Clerk thereof shall certify the aam ror observame to the Comoa18810ner8' Court, which shall oauee the same to b recorded in its Minutes; aiter the salary oS the County Auditor has been Sixed by the District Judge or Dietriot Judges no change in euoh salary shall tberesttor beoome .eSSeotive until the beginning of the next ensuing Sisoal year OS the county. Provided how- ever, any increase in the salary of any suoh County Auditor over and above the annual salary allowed euoh County Auditor under the gbneral law provided in Artiole 1546, as said artiole existed on Janu- ary 1, 1940, 8halL only be allowed or permittebwlth the express ooneent and approval OS the Oomt~Ieeioner** court OS the oounty whoa9 County Auditor la aSSeate6' or may be arrected by the provisions oS this Aet; auoh ooneent and approval of such Commissioners* Oeurt &all be made by order oS aald oourt and recorded ~JI the Minutee oS the Commissioners* Court OS said ootmty.* we note that you atate in etisat that~Artlale 1045, (9. B. 119, aupra) repealed House Bill Ro. 409, Act6 of the 47th LegiS- laturo, 1941, Regular Session (whioh is another artiole oS Vernon's Annotated Civil Statutes, denomin+ed Article 1645). at least Inso- Sar aa they aoniliot with each other roctarding the Siring OS the County Auditor's salary. In Opinion Ro. 04851, this department held, among other things, that the prorieiona of 3~.B. llQ with reierenoe to the annual salary oS the County Auditor are in aonSliot with the provieione of H. B. 409, pertaining to the salary OS the County Audi- tor, and said proriaione OS H. 2. 409 are repealed by S. B. Ro. 119. Article 1545, Vernon's knnotated Civil Statutes, as it existed on January 1, 1940, read~a, in part, aa Sollowe: "In any county having a population OS thirty-five thousand (35,000) inhabitanta or over, aooording to the preoeding Federal COMIU, or hoviw a tax ralua- tion OS SiSteen million dollars ($15,000,000), or over, aooording to the laet approved tax roll there shall be biennallg appointed an auditor OS aoaounte and Sinancee, the title of said officer to be County Auditor, who shall hold his oSSice Sor two (2) years, and who shall receive. as compensation SGr hia servloee one hundred and twenty-five dollars ($125.00) for each million dollars, or mejor portion thereof, on the aaseseed valuotioae, the annual salary to be computed from the laet approved tnx rolls; said annual ealary rrom oounty funds shall not exceed ~~;vthoueand six hundred dollars ($3,6OC.O0) Generally epeaking, in view of the foregoing etatutea, you are advined that the annual salary of the County Auditor cannot be more than the annual salary allowed or paId the Asaemor alld Colleo- tar of Taxes Ia hia oounty, and not less than the amma salary al- lowed suoh County Auditor under the ganeral laws provided in krtlale 1645, Revised Civil Statute@, aa eaid Article existed on January 1, 1940. Suoh salary of the County Auditor to be rixed and determined by the District Judge or Distriat Judge8 making such appointment and having jurisdiotion In tbo oounty, a majority ruling, said annual salary to be paid monthly out or the general fund of the oounty. Ii the annual salary or the County Auditor was fixed under the provisione of nrtiale l&&S, ae said Artiale existed on January 1, 1940, meid mlary mustbe oomputed from the last approved tax roll8 at the time tha salary wa8 tired. H’e want to point out that any Inareaee In the salary of the County Auditor, over and above the uinua,l salary allowed suoh County Auditor Under the general law pr@vldod in Article 1645, a8 said Arti- ale existed on January 1, 1940, shall only be alloafd or permitted with the exprea6 consent and approval of the Commissionera’ Court of the oounty whose auditor Is affeated. Artlole 1845, supra, expreeely provides that “any increase in the trelary of any suah aounty auditor, over and above the annual salary allowed suoh county auditor under the ganeral law provided In Article 1845, as aaid Artiole exiated’on January 1, 1940, shall only be allowed or permitted with the txprese consent and approval of the Commiaeioners * Oourt or the oounty whose OQMty auditor Ia affected or may be affected by the provieIom of thie hot; suah consent and approval of such CommIssIonere* Court shall be made by the audltor of such court and recorded In the Minutea Or the Co:tissIonere* Court of such County.* Your letter discloses that when the District Judge appointed the County Auditor he did not fix and determine the salary of the County Auditor. Aa above atated, it IO our opinion that the salary Of the County Auditor should be fixed and determined by the dietrict judge or district judges making such appointment and having jurisdlc- tion In the oountp. However, where suoh dlatrict judge fails to #lx and determine the salary of the County Auditor when the appointment wae made, it Ia our opinion that the Auditor would be entitled to an annual salary allowed suoh County Auditor under the general law pro- vided In Article 1645, as said lirtfcle existed on January 1, 1940. DonorableJO~II 0. Yarburger, j~age5 statsd differently,Ii the District Judge did not rix ad a&,ttinc3 any definite salary for the County Auditor, Ws believe that It follows that not more than the minimum was In- tended, and the minimum Is rixed by said krtiole 1645, as It existed on January 1, 1940. One of the anolosed statementsof your InWIry reveals that the tax valuation of Fayette County aver since 1940 walr over ~14,OOC,OOO but under $14;500,000axoept for the year 1944, for whioh year the tax valuatloa is $14,543,905. Specificallyanswering your firat pusstion, it is Our opinion that the salary of the County Auditor of Fayette County for the gear 1,944 la &%,OOOand further that the annual salary of the County Auditor of Fayette County for 1945, oosseanoingwith January 1st. would be $9,195, as the annual salary of the County Auditor is oontrolledby tkm provisionsof Article 1445, ass&l Article existed on January 1, 1940, said salary must be oomputed on the last approved tax rolls of the oounty. Your ssoond question is rrspeotfullyanmversd in the af- f irmativo. lMn the annual salary Or the County Auditor 18 oon- trolled by the provfsions of Article 1445, as eaid Article existed on January 1, 1940, said salary must be oo*putedon the last approved tar roll8 of the uounty. Replying to your third question, you ars adviee4 tPmt It is our opinion that any lnorsaw or doorsass of the salary or the County Auditor, under Artlo 1445, as sold Art1010 existed on January 1, 1940, would beoome efieotlve on January 1st based upon ths last approved tax rolls of the county. In view of the express provisionsof Article 1445, Vsfnon's Annotated Civil Statutes, it IS our opinion that your fourth ~uas- tion should be answered in the affirmative,and is so answered. In reply to your fifth puestion, you are respeotrullyad- vised that Iiiis our opinion that the Oommissioners~Court should reaord In their minutes their approval of any homass of salary of the bounty Auditor above the s&&sum allowed by law.