Untitled Texas Attorney General Opinion

OFFICE OF THE Al-CORNEY, GENERAL OF TEXAS AUSTIN , Honorable i"l. P. Hems, Jr. County Auditor Xnllor County HeEpSt8ad, Texas Dear Sir: Auditor's sa Senate Bill 119, bcgfnning of the fiBcal year January 1st next? Once tha inorenso In salary is approved and allowed by the Dlotriot ~udgo and subsequently by the Comis- sioners* Court, is It not within the District Judge's discretion to mt that salary in the future within . I Honorable IV. P. Herms, Jr* - Page 2 the limits of the increase whloh was once approved by the Commissioners' Court? "For instance, if the inorcaso as approved by' the District Judge and Co~issionars' Court made Auditors' salary $lBOO--above the minlnum as allowed undor the Statutes In 1940"-than when anothor ap- polntmcnt COIXS Dooembor It or when new fiaoal year begins January 1, is it not within the disoretion of the District Judge alono to reduce said salary below this figure?" - ~Your letter of Uotober 23, 1941, supplementing the above mentionad letter reads In part as follows: "AoOording to your request of Ootober 22, 1941, letter; please find inclosod a copy of the order of the Distriot Judge netting the aalary of the County Auditor, which is a part of and oombinod and includ- 8d in the oortified copy of the Commissloners~ Court minutes approving and allowing the same. "To ropeat, the question of most conoern, Is whother, when the Distriot Judge reappoints Auditor this Dceembar, he oon set said salary at $1200 again, for ths ensuing par, this timo without anotherap- proving order of tho Commissioners' Court, such hav- lng already been approved once, and before roappoint- mat was made. *Otherwise, if the Diotrict sets the salary et $1000 in December when ho roappolnts, the Commission- ers' court having onoe approved this salary, is it neoossary for them to do so againo" A aopy of the order of the district judge setting the aalery of the county auditor, which you advise,'wasapproved by the Commissioners1 COWA, reads a9 fOLlOwS: Wonroo, Texas, July 25, 1941 "Honorable Commissioners~ Court Wailer County, Hempstead, Texas. Gentlem8n: J.naocordanoo with Senate Bill No. 119 Of the I' .47thLegislature just passed and approved by Governor Honorable W. P. Herms, Jr. - Page 3 % Lee O'Daniol, July 9, 1941, It is my ordor as District Judge of tho Ninth Judicial District, that the salary of W. P. Harms, County Auditor of Wailer County, who has beon legally appointed county Audi;. tor in aooordanoe with Artiole 1646 Civil Statutes of Texas, be Eighteen Hunarod ($1800.00) Dollars an- nually, el'feCtiV8hugunt 1, 1941, and shall continue until such time as it is doomed advisable to make a ohange in aooordanoe with tho laws of Texas* W. B. Browser, W. B. Browdor, Judge Ninth Judioial Distriot of Texas. Filed with me&his 26 day of July, A. D. 1941,, Filed with me this 1 day of A. 8. Foster, Dlstriot August, 1941. Dick Cuny, CO., Clerk, Wallor County Clerk Wailer T8XaS (Signed) Co. Texas The Stat8 of Texas 1 County of Wsller 0 I, A. F. Foster, Clerk of the District Court in and for Wailer County, Texas, do here- by certify that the above and foregoing is a true and OOrreOt copy Of the original ordor of Hon. W. B. Browdor, Judge of the Ninth Judicial District of Texas, setting the salary of Vi. PO Harms, County 'Auditorof Waller County, Tolcas,as the same appears of reaord In my office in Volume J, at Pago 104, Civil Minutes of said Distriot Court0 Given under my hand and seal of said Court, at offioe In Hempstead, Texas, this 28th day of July, A.D. 1941s A. F. Footer, Clork Distriot Court, Wallcr County, Texas." Wailer County has a population of 10,280 inhabitants according to the 1940 Federal consua and a tax valuation of $5,961,444000 according to the last approved tax roll0 Sootion 1 of Sonato Bill ll9, Acts of .tle47th Legislature, Roguaar Sossion, 1941, is applioable to any county having a population of 35,000 inhabitants or more* according to the laet preceding >'8d8ralconsus, or having a tax valuation of $15,000,000,or over',aocording to the la3t approvod tax roll. Nailer County does not lava the popula- tion or tax valuation as mentioned in Section 1 of Senate Bill No0 119, supra, therefore, this seotion is not aPPli- cable to Wailer County0 -. Honorable W. P* Herms, Jr. - Page 4 Sootion 2 of Sonata Bill NO. 119, supra, reads as roncvis: 7 “Section 2. That Artiola 1646, of the Revised Civil Statutes of Texas, 1925, as amended by Acts 1929, 41st Legislature, page 687, ohaptor 308, Section 1, bo, and the sama ia hereby amended so as to horeaftor road as follows: 'Article 1646. 'When the Commissioners' Court of a oounty not mt?ntionodand onumoratod in the preooding Article shall dotormlne that an Auditor is a public nooonsity in the dis- patch of tho county business, and shall enter an order upon tho minutes of said Court fully setting out the roanon for and nocos- sity of an Auditor, and shnll cause such oraor to be cortifiaa to tho Distriot 3udge. or Distriot Judges having jurisdiction in the county, oaid Judge or Judges shall, if said reason ,be considoroU good and ouffioiont, appoint a CoilntgAuditor as provided in the precading Article, who shnll qualify and per- form all the duties required of County dud- itors by tho laws of this Stato, and who shall receive as oo,npenaetionfor his services as County Auditor an annual salary of not more than the annual total oomponsation and/or salary allowed or paid tho Ascessor and Col- lector of Taxes in his co'unty,and not less than the annual salary allowed ouch County Auditor undor the Gonoral Laruprovided in Artiolo 1645, Revised Civil Statutos, as said Article existed on Janunry 1, 1940, such salary of the county Auditor to bo detornined and fixed b;rtha District Judge or District Judges having jurisdiotion in the oounty, a majority thereof ruling, said annual salary to be paid monthly out of the general fund of the county. The action of said Distriot Judge or District Judges Honorable IV.P. Herms, Jr. - Page 5 in determining and fixing the oalsry of , the County Auditor shall be medo by order and recorded in the minutos of tha DistriOt Court of the County, and the Clark theroof shall certify tho samo for obocrvonoo to the COIXzkmiOaCr3'Court which shall cause the same to be rocordod in its mlnutos; aftor the salary of the County Auditor hoc boon fixed by the District niaee or District JUdSOS, no chang in such salary shall thcrcaftor be- Coma effective until the boginning of ths next ensuing *fisoolyear of the county; pro- vided, however, any incroaso in the salary of any such County Auditor, over and above the annual salary allowed nuoh County Audi- tor under the general law provided in L-ti- olo 1645, as said ArtiOlo existed on January 1, 1940, shell only bo allo.vedor parmittod with the express oonsont and approval of the Commissioners* Court of the oounty whose County Auditor is nrfectod or may be effected by the provisions of this Act; auoh consent and approval of suoh Co?;;niscionars*Court shall be mcddoby ardor of such Court and rooord- cd in tho minutos of the CoLmisaionors' Court of such County. Providod, said Dfstriot Judge or District Judges shall have tho poJ:orto dis- continue the sorvlces of a County duditor as provided for in this Artiolo at any time aftor the ox~iration of one (1) year from tho appoint- ment, when it is oloarly shovtnthat such dudi- tor is not a public necessity, and his services are not commensurate with his salary.'" The above mentionod dot provides in offeot that the maximum onlery of the county auditor shall not be more thon the annual total compensation and/or salary allaNed or paid the assoscor and colleotor of taxos in his Oounty and further provides that the minimum shall not be less than the annual salary alloivcdsuch county auditor under the general law pro- VI&Q& in ArtiOle 1645, Revised Civil Statutes, as said Article existed on January 1, 1949~. Apparently the salary of tha Honorable W .P. Harms, Jr. - Page 6 county auditor was $1500000 per yoer until raisod by thi District judge and approved by tho Commi5sionors~ Court in complinnoe with Sonato Bill No. ll.9,suprao Whothor this was the oorrect salary for the county auditor, is a quostion not before US. However, in this connection wo call your attention to Opinion No. O-826, a copy cf whioh is enclosed for your information0 In answer to your inquiry, you are respeotrully advised that it is the opinion of this dopartmant that when a county auditor is appointod or tho prosont auditor roap- pointed the Distriot Judge oan sot the salary at,$1800000 for the ensuing year without another approving ordor of the Commissioners1 Court. Unless the salary of the county auditor is incroasod beyond the sum of $1800.00 it will not be necessary to obtain the express oonsent and approval of the Commissioners1 Court* Trusting that the foregoing fully answers your in- quiry, we are Yours very truly ATTORIEYGEXEMLOFTFXAS By (8) aradi William3 Assistant AW:FS APPFtOVlCIl NOV, 4, 1941 APPFiOlT!D (8) GroverSellers Opinion Committee First Assistant Attorney General By B.W.B. Ohairman