Mr. W. B. Lane
County Auditor, Dlmmlt County
Carlzzo Sprinps, Texas
Dear Mr. Lane:
Opinion l'Zo. O-96
Power of Co
Your letter of Jan requests an opinion
Srom thls Department on the
urt of 8 aounty
of less than 2 rdlng to the last
' United States he authority to
for the purposes
1646% without
of the County
wer to the above In
ary that the above
ors be a resident of the
5 and 1648 deal strlotly with the ap-
aounty auditor. Article 1645 deals
f % oountp auditor in a oounty having
aooordlng to the last Federal - ~
oewus or tax valuation of fifteen mllllon dollars
or over. 646 provides for the appointment oi an
auditor in a oounty having a population of lums than 35,000
and provides that for good cause shown, the Commissioners*
Court oan enter an order upon the Minutes of said oourt and
oan oause said order to be oertlfled to the District Judges
Mr. U. B. Lane, January 13, 1939, Page 2
having jurlrdlotlon In the oounty and suoh District Judge8
shall, if suoh reason be ooosldered good and suiflolent, appoint
a oounty auditor in line with the mathod presdrlbed by Artlole
1647.
The question8 propounded by you ciearly remove the
neoeaelty for a oonslderation of Articles 1645, 1646 and 1647,
and it is apparent that the purpose of your Inquiry Is to de-
termine whether or not a Commlrslonere Court In a oounty ot
lees than 25,000 lnhabitentr has the authority to appoint 8
sneolal auditor. This being so, your situation is to be oon-
trolled by Artfolee 1641 and 1646a of the Revleed Civil Statutes
OS Torea.
To arrive at a olear underetandlng of Artloler 1641
and 1646a, it will be neoeaeary to review tile hletory ot euoh
articles. By Chapter 80, Aots of the Regular Session of the
58th Legislature, Artloles 1469a and 145Qb were added to the
Revised Civil Statutes of 1911. These articles were brou(;ht for-
ward In the Revised Clvll Statute8 of 1925 8s Article 1641.
By Chapter 67, Aots o? ,the Regular Session of the 39th
Legislature, Artlole 14690 was added to the Revised Civil Statutes
of 1911. This Artiole reads aa follows:
“The Commi6sloners* Court of any county under
25,000 population aooordlng to the last United States
oeusus may make an arrangement or agreement with one
or more other oountlee whereby all oounties, parties
to the arrangement or agreement, may jointly employ
and oompensate a speolal auditor or auditors for the
purposes speolfled In Artloles 1459% and 1459b. The
County Commissioners* Court OS every county #footed by 1
thlr artloie may have an audit made of all of the books
of the county or any of them at any time they may de-
alre, whether such arrangements oan be made with other
oounties or not; provided the Dletrlot Judgeor Grand
Jury may order said audit if either so deslre8.e
This article has been brought forward 8s Article 1640%.
This article now provider that R... may jointly employ and com-
pensate a speoial auditor or auditors ror the purposes specified
in Artloles1645 and 1646.” This 18, no doubt, an brroneoum
reference as to artlole numbera, for In the origlnaf Article
14890 of the Revised Clrll Sta!:uter of $911, it was provided
that; 0.e. may jointly employ and oompensato a speolal auditor
or auditors for the purpoeee- speolfied in Articles 1459% and
1459b, whloh artloler oompose the present Artiole 1541. This
being true, Article 1446a oi our present atatutee should pro-
’ Kr. iy. B. Lana, January 13, 1939, Page 3
ride that the Commlsslonsrs Court (I... may jointly employ and
oompensate a special auditor or auditors for the purposes specl-
Sled in Article 1641.n
Artlols 1641 of the Revised Civil Statutes of 1925
reads as follows:
“Any oonralssloners oourt, when in lto judgment an
imper%tlvs pub110 neoesslty sxlats therefor, shall have
authority to employ a disinterested, oompetent and ex-
part pub110 aocountant to audit all or any part of the
books, records, or aooounte of the‘oounty; or of any
district, oounty or preolnot orricers, agents or em-
ployee, lnoludlng auditors of the oountlea, and a11 gov-
ernmental units of the county, hospitals, farms and
other lnstltutlons of the oounty kept and maintained
at publio expense, a0 well as ror all matters rel%t-
ing to or atfectln~ the rlsoa> affairs of the oounty.
The resolution providing for suoh audit shall recite
the re%sons and neosssity existing therefor euoh as
that in the judgment oi said court there exists offi-
cial mlsoonduct, willful omission or negllgenoe in re-
oords and reports, mlsapplloatlon, oonverslon or re-
tention of public funds, failure in keeping aocounts,
making report.6 and accounting for public funds by any
officer, agent or employs of the district, oounty or
preolnot, including depositories, hospitals, and other
pub110 institutions maintained for the public benefit,
and at pub110 expense; or that in the judgment of the
oourt, it Is necessary that It have the information
aou@t to enable it to d etennlne and fix proper appro-
priation and expenditure of public moneys, and to %s-
certain %nd fix a just and proper tax levy. The s%ld
resolution may be presented in writing at sny regular
or oalled session of the oommlasloners oourt, but shall
lie over to the next regular term of said oourt, and
shall be published in one issue oi % newspaper of
general olroulatlon published in the oounty; provided
if there be no such newspaper published in the county,
then notice thereof shall be posted in three public
places in said oounty, one of which shall be at the
court house door, ror at leaat ten days prior to Its
adaption. At suoh next regular &or!%s%ld resolutlon
shall bo adopted by a majority vote of the four oom-
mlsaloners of the oourt and approred by the oounty
NM. Any contract sntered into by said oommlssioners
oourt for the audit provldsd herein shall be mede in
accordance with the etatutes applloabls to the letting
of oontraots by sald court, payment for which m%y bo
made out or the public funds of the oounty ln aooord-
anoe with eald rtatutos. The authority oonforred on
oounty audltore oontained in this title as well as other
provisions or statutes rolntlne to district, oounty and
,.,
Mr. ‘A. B. Lane, January 13, 1939, Page 4 ?“q
..
preolnot flnanoes and aocounte thereof shall bz~
hold subordinate to the powers given herein to the
oon0ilsslon4rs~ OOurt.R
Thus if o%n be aeon that Artlolea ,1441 and 1444a of
the Revised Clrll Statutes ot 1925 deal with ths right ot the
Commlssloners Court to provide for an audit by an eooountant
or % sDeola1 auditor.
Bearing in mind that the present Artlole 1441, oom-
posed 8s it is of Articles 1459% and 145Qb ot the Revised 01~11
Statutes or 1911, w%s paesed by the 3Sth Leplslature at its
reguler Session and the prssent Article 1444a, formerly Arti-
014 14490 0t the Revised 01~11 Statutes of 1911, wae parsed by
the rsgular session of the 39th Leglslaturs,- it la logioal to
assums that euoh +rtlolo 1444a must be oonstrusd aa a llberal-
lsatlon statute. This opinion la eipressed by Judge Jackson
ot the Amarillo Court of Civil Appeals in the oase ot Coohran
County YE. West Audit Company, reported in 10 9. W. (2) 229.
The Court says:
“Under Artlolo l444a w4 %ro lnollned to ths
view that the Commlsslonere* Court of Coohran County
would be authorized to employ an auditor without a
rigid compliancs with Artlcls 1441.” j.,J
J
The writer la lead to the opinion that ths Legislature
in the passags of Artlols 1444% had no intention or desireto re-
peal Artlole 1441 or any part thereof, but rather to llberallze
the oompllanos with Artlols 1441 if events and circumstances
justlty the Commlrsioners~ Court In acting in euch a mannor as
to dlspenss with the strlot requirements ot Article 1641.
You are, theretorr, respectfully advised that it is 1
the oplnlon of this Depertmont that a 4ommlssloners1 Court of
a oounty ot less than 25,000 pppulatlon, according to the last
United States Federal census, has the authority to employ a
sp401%1 auditor or auditor4 without obtaining the approval
or permission of the Oounty Judge.
Article 1441 apeolfloally pr.ovldes that the action
of the Commlosloners* Court muet be by % majority of the tour
members of the Commlesloners ) Court and approved by the County
judg4. This provision 1s not contained, however, in Artiolo
1444a, nor does Article 1444a require the approval of the
Dlstrlot Judge. It merely provldse that in the event the Con-
mleslonsrs~ Court does not appoint a special auditor that the
Dlstrlot Judge or thr Grand Jury may order suoh audit if either
doslres that the same bs had.
lb. 1. B. Lsne, January,\3, 1939, Page 5
You are further advised that it is the opinion
of this Department that it is not neoessary’that the spa-
oial auditor provided for by Artlolo 1644a be a resldsnt
of the oounty in which he is appointed.
Trusting that this satlefaotorlly anowors your
inquiry, I am
Yours very truly
ATTORNEY
G%?E&U OF TEXAS
J@ll- L;Fs”I
\ ’ Assistant
LA:BT
APPROVED
:
U.-&Q
ATTOREISY G!?+MERAL
OF TEXAS
Untitled Texas Attorney General Opinion
Combined Opinion