Untitled Texas Attorney General Opinion

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