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 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 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 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 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 forward 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 dealre, 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 compensate 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 speclSled 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 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, and a11 governmental 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%ting 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 official mlsoonduct, willful omission or negllgenoe 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, 

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 appropriation and expenditure of public moneys, and to %scertain %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 oommlsaloners 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 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 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, oomposed 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 Arti014 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 llberallsatlon 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 repeal 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 Conmleslonsrs~ 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 spaoial 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