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 ofthe con-

2 tract ?. What a’uthority does a special auditor have 1’
.

‘Your request for’an opinion~on th.equestions as are herein stated has been ~received by this office. ..



### ,Yourletter rea’ds in part as follQ.ws:
.u 1. Does the Commissioners Court ‘ofa county of less than 25.000 poRulation aTcording tothe last Federal census have the authority to employ a,specjal auditor for the purposes specified in’Arti&s **1645, 1646**  and 1646,aWithout the approval and permission of the District Judge, and could said employment be for a peri~od oftime rather than a contract for a ‘specific ,audit~‘ofone or all departments ?

,,

‘2. Ifyour 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 ofthe &&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 ai1or’any part of’the books, ‘records, .or accounts ofthe 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 ofthe 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 thejudgment 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 ofthe 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 ofpublic moneys, and to ascertain and fix ajust and proper tax levy. ~Thesaid res.olution may be presented in writing at any regular or called session ofthe commissioners court, but shall liesover 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 ofwhich 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 ofthe 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~entfor which may be made out of the public funds ofthe 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,untyaffected by this article **may ’**  have an audit made of all the books ofthe 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.” Itwill be necessary toreview the-history ofArticle 1641 and Article 1646a to arrive at a clear understanding ofthese articles. By Chapter :80, **Acts.** ofthe 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.theRegularSession 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 ofthem 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~ ofthe Revised Civil **Statutes** of **1911,** itwas 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

_.. .

Itcan 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 ofthe Amarillo Court of Civil Appeals in the case of Cochran County vs. West Audit Company,, 10SW 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 **au** thorized 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,fa 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 ofthe 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 oftime. The special auditor would have such authority as would be conferred by the contract between ,thecommissioners’ court and such auditor. The special auditor should be compensated by contract entered into by the commissioners’ court payable for the term ofthe 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