The Attorney General of Texas
June 9, 1980
MARK WHITE
Attorney General
Honorable Joe D. LeMay Opinion No. MW-194
Coleman County Attorney
Coleman, Texas 76834 Re: Effect of article 1645 on the
office of county auditor in a county
with a tax valuation of under
$35,000,000.
Dear Mr. LeMay:
You have asked whether a recent amendment to article 1645, V.T.C.S.,
automatically abolishes the office of county auditor in a county .tith a tax
valuation of under $35,000,000.
Article 1645, V.T.C.S., which requires the appointment of county
auditors in certain counties, now provides:
In any county heving a population of 35,000
inhabitants or over according to the last preceding
Federal Census, or having a tax valuation of
$35,000,000 or over according to the last approved
tax rolls, there shall be appointed every two years an
auditor of accounts and finances, the title of said
office to be County Auditor, who shall hold his office
for two years . . . .
Acts 1979, 66th Leg., ch. 395, at 870; -see Attorney General Opinion H-571
(1975).
The 1979 amendment to article 1645 V.T.C.S., increased the tax
valuation figure of the statute from $15,000,000 to $35,000,000. Coleman
County has a population of under 35,000 inhabitants and a property valuation
of more than $15,000,000 but less than $35,000,000. Prior to the effective
date of ‘the amendment it was required to appoint an auditor every two
years. It is no longer stiject to this requirement. The commissioners court
has moreover voted to terminate the position of auditor.
p. 628
Honorable Joe D. LeMay - PageTwo (Mw-194)
In our opinion, the office of county auditor was not abolished as of the effective
. . .
date of the statute. While tne legislature would have been able to abolish the office in the
middle of the auditor’s term, we do not believe it intended to do so here. The statute is
phrased in terms of the requirement to appoint an auditor. We believe the appropriate
time to determine whether a county must comply with the statute is at the time of
appointment. Thus, the incumbent may serve out his two year term. See Attorney
General Opinion O-4903 (1942). At that time, article 1645, V.T.C.S., woumno longer
require Coleman County to have an auditor.
We note that Attorney General Opinion H-1065 (1977) gave a different interpretation
to the following language of the statute creating the State Board of Morticians:
No member shall be appointed to the Board who is an officer or
employee of a corporation or other business entity controlling or
operating, directly or indirectly, more than three funeral establish-
ments, if another member of the Board is also an officer or
employee of the same corporation or other business entity.
V.T.C.S. art. 4582b, § 2A(5). The opinion determined that the qualifications for
appointment must continue to be present throughout the employee’s tenure of office.
When he no longer possessed those qualifications, he lost his right to serve. See also
Attorney General Opinion H-578 (1975). However, this conclusion was based on the
legislative policy that required representation of various interests on the Board. This
policy is not present in article 1645, V.T.C.S., where only the requirement that the county
have an auditor has changed, and not the auditor’s qualifications to serve.
You also ask whether it is necessary for the commissioners court to take action
under article 1646, V.T.C.S., to keep the office of county auditor in a county of under
$35,000,000 tax valuation. Once the present auditor’s term is completed or a vacancy
otherwise occurs, the county would have to take action under article 1646, V.T.C.S., to
keep the office of auditor. It must find such action to be of public necessity, and the
district judges of the county must find the reasons set forth by the commissioners to be
“good and sufficient.” The district judges have the authority to make the appointment, fix
the salary and discontinue the services of the county auditor if it is clearly shown that
there is no public necessity. See C,
146 S.W.2d 170 (Tex. 1941). -
SUMMARY
A recent amendment to article 1645, V.T.C.S., releasing some
counties from the requirement that an auditor be appointed does
not abolish the office until the term is up. After the term is over,
P. 629
. .
Honorable Joe D. LeMay - Page Three (Mw-194)
the county would have to take action under article 1646, V.T.C.S.,
to keep the office of auditor.
>iwhm~
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
C. Robert Heath, Chairman
Walter Davis
Susan Garrison
Rick Gilpin
Bruce Youngblood
P. 630