OFFICE OF THE Al-CORNEY,GENERAL OF TEXAS AUSTIN

,

Honorable i"l.

P. Hems, Jr. CountyAuditor 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 allowedby the Dlotriot ~udgo and subsequentlyby the Comissioners* Court, is It not within the District Judge's discretion to mt that salary in the futurewithin. I

Honorable IV.P. Herms, Jr* - Page 2

the limits of the increasewhloh was once approved by the Commissioners'Court?
"For instance, if the inorcasoas approvedby' the District Judge and Co~issionars' Courtmade Auditors' salary $lBOO--abovethe minlnum as allowed undor the Statutes In 1940"-thanwhen anothor appolntmcnt 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?" - ~Yourletter of Uotober 23, 1941, supplementingthe above mentionad letter reads In part as follows:

"AoOordingto your request of Ootober 22, 1941, letter; please find inclosoda copy of the order of the Distriot Judge netting the aalary of the County Auditor,which is a part of and oombinod and includ8d in the oortified copy of the Commissloners~Court minutes approving and allowingthe same. "To ropeat, the questionof most conoern, Is whother,when the Distriot Judge reappointsAuditor this Dceembar, he oon set said salary at $1200 again, for ths ensuing par, this timo without anotherapproving order of tho Commissioners'Court, such havlng alreadybeen approved once, and before roappointmat was made. *Otherwise, if the Diotrict sets the salary et $1000 in Decemberwhen ho roappolnts, theCommissioners' 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,'was approved by the Commissioners1COWA, reads a9 fOLlOwS: Wonroo, Texas, July 25, 1941 "HonorableCommissioners~Court Wailer County, Hempstead,Texas. Gentlem8n:
J.n aocordanoowith Senate Bill No. 119 Of the I' .47thLegislature justpassed and approved by GovernorHonorableW. P. Herms, Jr. - Page 3

% Lee O'Daniol,July 9, 1941, It is my ordor as District Judge of thoNinth Judicial District, that the salary of W. P. Harms, County Auditor of Wailer County,who has beon legally appointedcounty Audi;. tor in aooordanoewith Artiole 1646 Civil Statutes of Texas, be Eighteen Hunarod ($1800.00)Dollars annually,el'feCtiV8 hugunt 1, 1941, and shall continue until such time as it is doomed advisable tomake a ohange in aooordanoewith tho laws of Texas*
W. B. Browser, W. B. Browdor, Judge Judioial Distriot of Ninth Texas. Filed with me&his 26 day of July,A. D. 1941,, Filedwith 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 ofWsller 0 I, A. F. Foster, Clerk of the District Court in and for Wailer County, Texas, do hereby 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, CivilMinutes of said Distriot Court0 Given undermy 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 $5,961,444000according 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 inhabitantsor more* according to the laetpreceding >'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 population or tax valuationas mentioned in Section 1 of Senate Bill No0 119, supra, therefore, this seotion is not aPPlicable to Wailer County0-.

HonorableW. P* Herms, Jr. - Page 4

Sootion 2 of Sonata BillNO. 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. 'Whenthe Commissioners'Court of a oounty not mt?ntionod and onumoratod in the preoodingArticle shall dotormlne that an Auditor is a public nooonsity in the dispatch of tho countybusiness, and shall enter an order upon tho minutes of said Court fully setting out the roanon for and nocossity of an Auditor, and shnll cause such oraor to be cortifiaa to tho Distriot 3udge. or Distriot Judges having jurisdictionin the county, oaid Judge or Judges shall, if said reason ,beconsidoroUgood and ouffioiont, appoint a Coilntg

Auditor as provided in the precading Article,who shnll qualify and perform all the duties required of County duditors by tho laws of this Stato, and who shall receive as oo,npenaetion for his services as County Auditor an annual salary of not more than the annual total oomponsationand/or salary allowed or paid tho Ascessor and Collector of Taxes in his co'unty, and not less than the annual salaryallowed ouch County Auditor undor the Gonoral Laru provided in Artiolo 1645,Revised Civil Statutos,as said Article existed on Janunry 1, 1940, such salary of the county Auditor to bo detorninedand fixed b;rtha District Judge or District Judges having jurisdiotionin 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 JudgesHonorableIV.P. Herms, Jr. - Page 5

in determiningand fixing the oalsryof , the County Auditor shall be medo by order and recorded in theminutos of thaDistriOt 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 itsmlnutos; aftor the salary of the CountyAuditor hoc boon fixed by the District niaee or District JUdSOS, no chang in such salary shall thcrcaftorbeComa effectiveuntil the boginning of ths next ensuing *fisool year of the county;provided, however, any incroaso in the salary of any such CountyAuditor, over and above the annual salary allowed nuoh County Auditor under the general law provided in L-tiolo 1645, as saidArtiOlo existed on January 1, 1940, shell only bo allo.ved or parmittod with the express oonsontand approval of the Commissioners*Court of the oountywhose 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 mcddo

by ardor of such Court and rooordcd in tho minutos of the CoLmisaionors'Court of such County. Providod, said Dfstriot Judge or DistrictJudges shall have tho poJ:or to discontinue the sorvlces of a County duditor as provided for in thisArtiolo at any time aftor the ox~irationof one (1)year from tho appointment, when it is oloarly shovtn that such duditor isnot a public necessity,and his services are not commensuratewith 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 compensationand/or salary allaNed or paid the assoscorand colleotorof taxos in his Oounty and further provides that the minimum shallnot be less than the annual salary alloivcd

such countyauditor under the general law proVI&Q& in ArtiOle 1645,Revised Civil Statutes, as saidArticle existed on January 1, 1949~.Apparently the salary of thaHonorableW .P.Harms, Jr. - Page 6

county auditorwas $1500000per yoer until raisod by thi District judge and approved by tho Commi5sionors~Court in complinnoewith Sonato Bill No. ll.9, suprao Whothor this was the oorrect salary for the county auditor, is a quostionnot before US. However, in this connectionwo call your attentionto OpinionNo. O-826, a copy cfwhioh is enclosed for your information0

In answer to your inquiry,you are respeotrully advised that it is the opinion of this dopartmant thatwhen a county auditor is appointod or tho prosont auditor roappointed the Distriot Judge oan sot the salary at,$1800000 for the ensuing yearwithout another approving ordor of the Commissioners1Court. Unless the salary of the county auditor is incroasodbeyond the sum of $1800.00 it will not be necessary to obtain the express oonsent and approval of the Commissioners1Court*

Trusting that the foregoing fully answersyour inquiry,we are

Yours very truly
ATTORIEYGEXEMLOFTFXAS 

### By (8) aradi William3

Assistant
AW:FS

APPFtOVlCIl

NOV, 4, 1941 APPFiOlT!D (8) GroverSellers OpinionCommittee First Assistant AttorneyGeneral By B.W.B. Ohairman