May 5, 1939
Mr. 'C. E. Weaver
county Auditor
Nacogdoches County
Nacogdoches, Texas
Dear Sir: Opinion No.. O-729
ke: How can the office of county
auditor be abolished and re-
created?
Your request for an opinion on the above stated question has been
received by this_ office.
We quote from your lettbr as follows:
“Can the office of County Auditor of’Nacogdodhes County-be abolished
by an order of the Commissioners Court and without the consent of
the T&strict Judge, at the expiration of the Audltorts two year term?
“Also; is It neoessary that the office of County Auditor of Pacog-
doohes‘County, established under Art. 1646, Vernon’s Annotated
Statutes, be re-created eaohtwo years by a request from the’
Commissioners Cciurt to the Dlstrlot Judge, or, the office having been
on6e established in suoh manner, la the power vested in the District
Judge to continue such office and make an appointment, orreappolnt-
meht, of a County Auditor, if he deoldes there 1s still (a public
necessity in the oountgts business’ for a County AudltorZn
We are Informed by your-letter and-by the tiomptroiler’s &floe that
Nacogdoches County has a population of 30,390 lnhabltants~ aocording
to the last Federal oensus and that the last assessed valuation was
$11,968,650.00;
Article 16&, Revised Civil Statutes, reads in part as follows:
“In any county-having a popuiatfon of thirty-five thousand lnhabl-
tants or over, according to the preceding Federal Census, or having
-a tax~valuatlon of Fifteen Million Do1Iars.(#1~,000,000), or over,
according to the last approved tax roll, there shall be-biennially
appointed anAuditor of Accounts and Finances, the title of said
officer to be county auditor, who shall hold his office for two (-29
,.s;;~ plldm aha&l reo&vmaas ~e*Sa4am
.+ hlo aervicw One
^* .
Mr. C. E. Weaver, May 5, 1939, page 2, O-729
i Hundred !L’wenty-five Dollars ()125) for each million dollars, or
major portion thereof on the assessed valuation, the annual salary
to be computed from the last approved tax roll; said,annual salary
from-county funds shall not exceed Three Thousand Six Hundred Dollars
($3,600)....”
The population of Nacogdoches County and the assessed valuation of the
nrooertv irvour countv do not come-within the terms of Article 1645,
bf~ihe Revi& Civil Statutes, consequently article 1645 is not appli-
cable to Nacog‘doches County.
Artiole 1646, Revised ‘Civil Statutes, reads in part as fallows:
“When the Co-missioners1 Co& of a County, not . mentioned
. . . . and -_
enumerated .in the preceding Article shall determine tnat an auditor
is a public necessity in the dispatch of the county business, and
shall enter an order upon’the Minutes of said Court fully setting out
the reasons’ and necesslw of an auditor , and shall cause said order
-to be oertlfled to the District Judges having jurisdiction in the
oounty;said Judges shall, if such reason be considered good.and
au-~ appoint a County Auditor, as provided in the sucoeedlr+g
&tiole, who shall qualify and pdrform all the duties required of
County~Addttors by the Laws of this State; provided, said Judge,&hall
have the power to discontinue the offloe of such County Auditor- at any
time after the axpirat$on of-tine year when its is plearly shown thaC
suoh auditor is not a public necessity and his services are not
oommensurate with his salary reoelvedf...”
We presume that at the time an auditor was orlgina’lly appointed in
Hacogdoohes County, the Commissioners~ Court entered an order upon
the minutes of said Court, fully setting out the reasons and
neoesslty for an auditor., and caused the order t6be certified to
the Distriot Judge of your oounty and that he cona’idered the reason8
stated in the court’s order to be good +nd euffioient and did appoint
a county auditor for a term of two ears, and that.auoh appointee
qualified as provided in Article 1.6t 9,, Revised Civil Statutes, 1925,
by taking the oath of offioe and makingthe bond provided for 1” that
article.
In view of Article. 1646, supra, you are advised that when the
Commissioners~ Court by virtue of authority vested in it by suoh
artlole officially determines that an auditor is a public necessity
in the dispatch of the oounty business and enters an order upon the
minutes of the Commissioners t Lourt fully setting out the reasons and
-necessity for an auditor, and’ causes such order to be certified to
the District Judge qr.~,Judges having jurisdiction in the county, and
the Judge or Judges consider the reasons set.forth in the court order
to be-good and suffiolent and appoint the county auditor in conformity
with Article 1647, and the office of county auditor is then created;
.” _
Mr. C. E. Weaver, May 5, 1939, Pa6e 3, O-729
In such county and the tenure or such office 1s for a period of two
years. Inasmuch as Article 1646, supra, provides the method or
manner In which such office may be discontinued and states:
“Provided, said Judge shall have the power to discontinue the office
of such County Auditor at any time after the expiration of one year
when it la clearly shown that such auditor Is not a public necessity
and his services are not commensurate with his salary received:”
We think this method of discontinuing the office Is exclusive and
‘that the office -may not be discontinued in any other way axoept by
act of the Legislature in changing the law or repealing the law
because where a method of discontinuing an office Is provided, it is
the general rule of construction that the method so provided 1s
exclusive, and excludes discontinuance of the office by any other
method or procedure.
You also ask if the Commissioners ’ Court, under Article 1646, would
have to determine every two years-that an auditor 1s a public
-necessity in the dispatch of the county bualness and enter an order
upon the minutes of the Commissioners ’ Court fully setting out the
reasons and necessity for an auditor,-and cause such order to be
certified to the District Judge having jurisdiction in the county,
etc. It is not necessary for this official deter&nation to be
made and a *judgment entered and certlfled as above provided for everi
two year term, but that when such official determination la once
made.and‘suoh court order entered and certified to the District Judge
and he considers the reasons stated in the court order sufficient
-to authorize the appointment of an auditor in the county and evidences
his finding in an order entered in the minutes ,of the District Court,
that the office of bounty auditor is Created, can only.be discontinued
by a fact finding by such District Judge after the expiration of one
year when It 1s clearly shown that such auditor 1s not a public
necessity and his services are not commensurate with his salary received.
You are respectfullyadvised that It is the opinion of this
Department that the office of county auditor of kaoogdoohes County
cannot be abolished by an order of the Commissioners’ Court.,
You are further advised that the Commissioners1 Court would not have
to determine every two years than an auditor is a public necessity
in the dispatch of the county business and enter an order upon the
minutes of the Commissioners 1 Court fully setting out the reasons
and necessity for an auditor, but that when such offlclal determlna-
tlon Is once made and such court order entered and certified to the
District Judge and he considers the reasons stated In the court
order sufficient to authorize the appointment of an auditor in the
mgy and evidences his finding In an order entered in the minutes
5
- -
Mr. C. E. Weaver, May 5, 1939, Page 4, O-729
of the District Court that the office of county auditor is created,
and can only be disoontlnued by a fact finding by such District
Judge after the e%pdration of one year when It is clearly shown that
such auditor is not a public necessity and his services are not
commensurate with his salary received.
Trusting that the foregoing answers your inquiry, we remain
Very truly yours
ATTORNEYGERERALOF TEXAS
. .._
By'. s/-Ardeli‘Wiliisk
Ardeil '~illlams
Assistant
AW: AW/og
APPROVED:
a/ Gerald C. Mann
ATTORNEYGENERALOF TEXAS