Hon. John W. Moore 

County Attorney 

Jack County 

Jacksboro; Texas 

Dear Sir: 

June 13. 1939 

: 

Opinion No. O-904 

Re: Would a special audj,.or be compensated by ‘a &o&&t enter,ed into by 

‘the ‘commissioners.’ court payable 

monthlj oi for the term of the con- 2 

tract ?. What a’uthority does a special 

auditor have 1’. 

‘Your request for’an opinion~on th.e questions as are herein 

stated has been ~received by this office. 

.. 

,Your letter rea’ds in part as follQ.ws: 

.u 1. Does the Commissioners Court ‘of a county of 

less than 25.000 poRulation aTcording to the last Federal 

census have the authority to employ a ,specjal auditor for 

the purposes specified in’Arti&s 1645, 1646 and 1646,a Without the approval and permission of the District Judge, and 

could said employment be for a peri~od of time rather than 

a contract for a ‘specific ,audit~‘of one or all departments ? 

,, 

‘2. If your answer and oRin~on to the above is in the 

a,ffirmative. would ‘such special auditor be compensated by 

a contract entered into by Commissioners Court,payable 

monthly or for the’terin of the &&tract, and 

“3. What authority would be conferred on a special 

auditor employed in this manner 1” 

Article 1641, Revised Civil Statutes, reads as.follows: 

‘Any commissioners ‘court, +&en in its’ judgment an 

imperative public necessity exists’ therefor, shall have authQrity to emplok a disinterested, competent and expert public accountant to’audit ai1 or’any part of’the books, ‘records, 

.or accounts of the county; or of any district, county or precinct officers, agents or employees, including auditors of 

the counties, and all governmental units of the county, hos- 
Han, John W. Moore. June 13. 1939, Page 2 . . . 

pitals, farms, and other institutions of the county kept 

and maintained at public expense, as well as for all matters relating to or affecting the fiscal affairs of the county. 

The resolution providing for such audit shall recite the 

reasons and necessity existing therefor such as that in 

the judgment of said court there exists official misconduct, 

willful omission or negligence in r~ecords and reports, misapplication, conversion or retention of public funds, failure 

in keeping ac~counts, making reports and accounting for public funds by any officer, agent or employee of the district, 

county or precinct, including depositories, hospitals, and 

other public institutions maintained for the public benefit, 

and at public expense; or that in the judgment of the court, 

it is necessary that it have the information sought to enable it to determine and fix proper appropriation and expenditure of public moneys, and to ascertain and fix a just 

and proper tax levy. ~The said res.olution may be presented 

in writing at any regular or called session of the commissioners court, but shall lies over to the next regular term of 

aaid court, and shall be published in one issue of a newspaper 

of general circulation published in the county; provided if 

there be no such newspaper published in the county, then notice thereof shall be posted in three public places in said 

county, one of which shall be at the court house door, for at 

least ten days prior to tts adoption. At such next regular 

term s,aid resolution shall be adopted by a majority vote of 

the four commissioners of the court and approved by the 

county judge. Any contract entered into by said commissioners court for the audit provided her.ein shall be made in 

accordance with the statutes applicable to the letting of contracts by said court, paym~ent for which may be made out of 

the public funds of the county in accordance with said statutes. 

The authority conferred on county auditors contained in this 

title as well as other provisions of statutes relating to district, county and precinct finances and accounts thereof shall 

be held subordinate to the powers given herein to the commissioners’ court;- 

Article 1646a, Revised Civil Statutes, reads as follows: 

‘The commissioners’ court of any county under twentyfive thousand population according to the la& United States 

census may make an arrangement or agreement with one or 

mole other counties whereby all counties, parties to the arrangement or agreement, may jointly employ and compensate 
- -- - .Hon. John W. Moore, June 1~3, 1939, Page 3 

a special auditor or au.ditors for the purposes specifie.d 

in Articles 1645 .and 1646; The county commissioners” 

Court of every co,unty affected by this article may’ have 

an audit made of all the books of the county, or any of 

them, at any time they may desire whether~.such arrange- 

‘ments can be mad~e~ with other counties or not; ,provided 

‘. the district judge or grand jury, may order. said audit if 

either so desires.” 

It will be necessary to review the- history of Article 1641 and 

Article 1646a to arrive at a clear understanding of these articles. By 

Chapter :80, Acts. of the RegularSession-of the ~38th,‘Legislature, Articles 

1459a and 1459b were added to the Revised Civil Statutes of 1911:. These 

articles were brought forward in the Revis,ed Civil Statutes of 1925 as 

Article 1641. :. : 

At Chapter 67; Acts of .the RegularSession of.the 39th Legislature’;‘Article 1459~ was added tom the Revised Civil Statutes’of ~1911.. 

This article reads as follows: ’ ‘~ ; 

‘The commis.sioners’ court of any county under twentyfive thousand ,population,‘accotding to the’ last United States 

census may make an a,rrangement ‘or, agreementwithcuie or 

more other. counties whe.reby’aIl counties, parties to’the ar-. 

.rangement or agreement may jointly’ employ and %zompenaate 

a special ~auditor ‘or auditors for the, purpose specified’in 

Articles 1459a and 1459b.” The county commissioners’ court 

of every county effected by this~ article may have an audit 

made of all of the books~ofthe,‘county~or’ any of them at any 

time they,may des,ire,, whether such arrangement can be made 

with other counties or not; provided the district judge of grand 

jury may orde,r said audits if either ~so.desires.” 

Thisarticle has been brought forward as Article .1646a, Revised Civil Statutesi This article now provides that ” . . . may jointly employ and compensate a special auditor or auditors for the purpose specified 

in Articles 1645 and 16.46.” This is, no doubt, an erroneous reference as 

to article numbers, for in the original article 1459~ of the Revised Civil 

Statutes of 1911, it was provided that ” . . , may jointly employ and compensate a special,auditor .or auditors for the purposes specified in Articles 

1459a and 1459b, “which articles compose the present article 1641. This 

being true, therefore Article 1646a of our present statutes should provide 

that the commissioners’ court “ . . . . may jointly employ and compensate a 

special auditor or aud,itors for the purposes~;specified in’Article 1641.” 
- 

Hat. John W. Moore, June 13, 1939, Page 4 _ . . . 

It can be seen that Articles 1641 and 1646a, supra, deal with the 

right of the commissioners’ court to provide for and .audit by an accountant 

or a special auditor. 

Judge Jackson of the Amarillo Court of Civil Appeals in the case 

of Cochran County vs. West Audit Company,, 10 SW 2nd 229, expressed the 

opinion that Article 1646a must be construed as a liberalization statute. The 

court says: 

‘Under Article 1646a, we are inclined to the view that . 

the commissioners’ court of Cochran County would be authorized to employ an auditor without a rigid compliance with 

Article 1641.” 

In opinion No. O-96, written by Hon. Lloyd Armstrong, Assistant 

Attorney General, addressed to W. B. Lane, County Auditor, Carrizo Springs, 

Texas, this department held that a commissioners’ court o,f a county of less 

than twenty-five thousand population, according to the last United States Federal census, has the authority to employ special auditor or auditors without 

obtaining the approval or permission of the district judge. 

In view of the foregaing authorities, you are respectfully advised 

that it is the opinion of this department that the commissioners’ court of a 

county of less than twenty-five thousand population, according to the last 

United States Federal Census, has the authority to employ a special auditor 

or auditors without obtaining the approval or permission of the district judge. 

The contract should be for a sp,ecific audit of one or all the matters as set 

forth in Article 1641, supra, rather than a contract of employment for a 

period of time. The special auditor would have such authority as would be 

conferred by the contract between ,the commissioners’ court and such auditor. 

The special auditor should be compensated by contract entered into by the 

commissioners’ court payable for the term of the contract. 

Trusting that the foregoing answers your inquiry, we remain 

Very truly yours 

ATTORNEYGENERALOF TEXAS 

BY 

AW :AW :da 

APPROVED: 

/s/ Gerald C. Mann 

ATTORNEY GENERAL OF TEXAS 

/s/ Ardell Williams 

Assistant 

APPROVED OPINION COMMITTEE BY RWF, CHAIRMAN