Mr. W.B. Lane

County Auditor, DlmmltCounty Carlzzo Sprinps, Texas Dear Mr. Lane: Opinion l'Zo.O-96 Power of Co

Your letter of Jan requests anopinion Sromthls Department on the
urt of 8aounty 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 apaounty 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 apopulation of lums than 35,000 andprovides that for good cause shown, the Commissioners* Court oan enter anorder upon the Minutes of said oourt and oan oause said order to **be** oertlfled to the District JudgesMr. U. B. Lane, January 13, 1939, Page 2

having jurlrdlotlon In the oounty and suoh District Judge8 shall, if suoh reason be ooosldered 

### goodandsuiflolent, appoint a oounty auditor in line with the mathod presdrlbed by Artlole 1647. The question8 propounded byyou 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 determine 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** oontrolled by Artfolee 1641 and 1646a of the 

### RevleedCivil Statutes OSTorea. Toarrive at a olear underetandlng of Artloler 1641 and 1646a, it will be neoeaeary to review tile hletory ot euoh articles. ByChapter 80, **Aots** of the Regular Session of the 58th Legislature, Artloles 1469a and 145Qbwere added to the Revised Civil Statutes of 1911. These articles were brou(;ht forward In the 

### RevisedClvll Statute8 of 1925 8s Article 1641.

ByChapter 67, Aots o?,the Regular Session of the 39th Legislature, Artlole 14690was added to the Revised Civil Statutes of 1911. This Artiole reads aa follows:

“The Commi6sloners* Court of anycounty under 25,000 population aooordlng to the last United States oeusus maymakean arrangement or agreement with one or more other oountlee whereby all oounties, parties to the arrangement or agreement, mayjointly employ and oompensate a speolal auditor or auditors for the purposes speolfled In Artloles 1459%and 1459b. The County Commissioners* Court OSevery county #footed by 1 thlr artloie mayhave anaudit madeof all of the books of the county or any of themat anytime they maydealre, whether such arrangements oan bemadewith other oounties or not; provided the Dletrlot Judgeor Grand Jury mayorder said audit if either sodeslre8.e This article has

### beenbrought forward 8s Article 1640%. This article nowprovider that R... mayjointly employ andcompensate aspeoial auditor 

### orauditors ror the purposes specified in Artloles1645 and 1646.” This 18, no doubt, anbrroneoum reference as 

### toartlole numbera, for In the origlnaf Article 14890 of the 

### RevisedClrll Sta!:uter of $911, it wasprovided that; 0.e. mayjointly employ andoompensato aspeolal 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, 

### Page3

ride that the Commlsslonsrs Court (I... mayjointly employ and oompensate a special auditor or auditors for the purposes speclSled in Article 1641.n

Artlols 1641 of the Revised Civil Statutes of 1925 reads as follows:

“Any oonralssloners oourt, whenin lto judgment an imper%tlvs pub110 neoesslty sxlats therefor, shall have authority to employ a disinterested, oompetent and expart 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 employee, lnoludlng auditors of the oountlea, anda11 governmental units of the county, hospitals, farms and 

### otherlnstltutlons of the oounty kept and maintained at publio expense, a0well as ror all matters rel%ting to or atfectln~ the rlsoa> affairs of the oounty. Theresolution providing for suoh audit shall recite the re%sons andneosssity existing therefor euohas that in the judgment oi said court there exists official mlsoonduct, willful omission 

### ornegllgenoe in reoords and reports, mlsapplloatlon, oonverslon or retention 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, andat pub110 expense; or that in the judgment of the oourt, it Is necessary that It have the information aou@t to enable it to detennlne andfix proper appropriation and expenditure of public moneys, andto %scertain %ndfix ajust andproper tax levy. The s%ld resolution maybe 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 bepublished 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 amajority vote of the four oommlsaloners of the oourt andapprored by the oounty NM. Anycontract sntered into by said oommlssioners oourt for the audit provldsd herein shall bemedein accordance with the etatutes applloabls to the letting of oontraots by **sald** court, paymentfor which m%ybo madeout **or** the public funds of the oounty ln aooordanoe 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

### beaeonthat 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 mindthat the present Artlole 1441, oomposed 8s it is of Articles 1459%and 145Qbot the Revised 01~11 Statutes or 1911, w%s**paesed** by the 3Sth Leplslature at its reguler Session andthe prssent Article 1444a, formerly Arti014 14490 0t the Revised 01~11 Statutes of 1911, wae

### parsedby the rsgular session of the 39th Leglslaturs,- it la logioal to assums that euoh 

### +rtlolo1444amust be oonstrusd 

### aaallberallsatlon statute. 

### Thisopinion la eipressed by Judge Jackson ot the Amarillo Court of Civil Appeals in the oase ot Coohran County YE. West Audit Company,reported in 109. W. (2) 229. The Court says:

“Under Artlolo l444a w4 %rolnollned 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%hadno intention or desireto repeal Artlole 1441 or anypart thereof, but rather to llberallze the oompllanos with Artlols 1441 if events and circumstances justlty the Commlrsioners~ Court In acting in euch amannoras 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 OountyJudge.

Article 1441 apeolfloally pr.ovldes that the action of the Commlosloners* Court muet be by %majority of the tour members of the Commlesloners ) Court andapproved by the County judg4. This 

### provision1s 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 Conmleslonsrs~ Court does not appoint a special auditor that the Dlstrlot Judge or thr GrandJury mayorder suoh audit if either doslres that the same**bs** had.lb. 1. B. Lsne, January,\3, 1939, Page 5

Youare further 

### advisedthat it is the opinion of this Department that it is not neoessary’that the spaoial auditor provided for by Artlolo 1644a be a resldsnt of the oounty in which he is appointed.

Trusting that this satlefaotorlly 

### anoworsyour inquiry, I am Yours very 

### truly ATTORNEY

G%?E&UOFTEXAS

J@ll- L;Fs”I 

## \ ’ Assistant LA:BT APPROVED

:
U.-&Q ATTOREISYG!?+MERAL OFTEXAS