### OIRNEYGENERAL

OFTEXAS

AUR1IN 11. TlzxAsThis Opinion

Overrules Opinion O-96 insofaras it conflicts vith this opinion.

Honorable R. A. McElrath CountyAuditor Cooke County Gainesville,Texas

Dear Sir: Opinion Ro. 

### O-5533 Re: Whether certainprovisions ofArticle 

### 1641,R. C. S., 1925, are mandatory upon the Commissioners1Court before entering Into a valid contract for an outsideaudit, and a related question.

After quotingArticle 

### 1641,R. C. S., you submit the following questions in your letter of August 

### 18, 1943, upon which you desire the opinion of this department:

"1

. Before entering Into a valid contract for an outside audit is itmandatory upon the commissioners1 court tohave presented to it in writing a resolution providing for such audit, such resolution to be publicized as setforth in the statute, and adopted at the next regular term of the Court?

"2

. In the adoption of any such resolution by a majority vote of the four commissionerswill it be necessary that at least three commissioners vote for such adoptlon,,ormay Itbe adopted by
a vote of two commissionersand the County Judge with two Commissionersvoting against adoption."

Artlcics 1641 and,l646a,, R,.C.S.of 1925, respectively, read as follows:

Article 

### 1641.

“ Any commissioners court,when in its judgment an imperativepublic necessity exists therefor, shallhave authority to employ a disinterested,Hon. R. A. McElrath, page 2

competent and expert public accountant to audit all or any part of the books, records, or accounts of the county; or of any district, county or precinct officers, agents or employes, includingauditors of the counties, and all governmental units of the county,hospitals, farms, and other instltutions 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 suchaudit shall recite the reasons and necessity existing therefor such
as that in the judgmentof said court there exists official mls-conduct,willful omission or negligence in records and reports,mlsappllcatlon, conversion
or retention of public funds, failure in keeping accounts,making reports and accounting for public funds by any officer, agent or employe of the district, county or precinct, includingdepositories, hospitals, and other public institutionsmaintained for the public benefit, and at public expense; or that in the judgment of the court, It is necessary that Ithave the information sought to enable it to determine and fix proper appropriationand expendlture of public moneys, and to ascertain and fix a just and proper tax levy. The said resolutionmay be presented In writing at any regular or called session of the commissionerscourt,but shall lie
over to the next regular term of said court, andshallbe published in one issue of a newspaRer- of general circulationpublished in the county;provided if there be no such newspaperpublished in the county, then notice thereof shallbe posted in three public places in said county, one of whfch shallbe at the courthouse door, for at least ten days prior to its adoption. At such next regular term said resolution shallbe adopted by a majority vote of the four commissioners of the court and approvedby the county judge. Any contractentered Into by said commissioners court for the audit pro- ‘videdherein shallbe made in accordance with the statutesapplicable to the letting of contractsby said court, payment for which may be made out of the public funds of the county in accordancewith 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 shallbe held subordinateto the powers given herein to the commissioners' court. (Acts 1923,p. 170.)".-

Hon. J. A. McElrath, page 3

Article 1646a.

"The commissioners'court of any county under twenty-five thousandpopulation ,accordlngto the lastUnited States censusmay make an arrangement
or agreementwith one or more other countieswhereby all counties,parties to the arrangement or agreement,may jointly employ and compensatea specialauditor or auditors for the purposes specified inArticles 1645 and 1646. The county commlssioners' court of every county affectedby this article may have an audit made of all the books of the county, or any of them, at any time theymay desire whether such arrangements can be made with other counties or not; provided the district judge
or grand jurymay order said audit If either so desires."

Article '2343,R. C. S., 1925,provides:

"Any threemembers of the said court, lncluding the county judge, shall constitutea quorum for the transaction of any business, except that of levying a county tax. Id."

In bringingArticle 1646a into the Revised Civil Statutes, 1925, this article erroneously refers to Article" 1645 and 1646 where in Its original enacted form, it expressly referred to."Articles 1459a and l@pb" '(R.C. S., 1911). In such original~form, this statutewas enacted~ by the same' 39th Legislature,Reg. Seas., which enacted~ Senate.Bill 382, Chapter 104, authorizing the preparation;printing, sale and distribution of theR. C. S. of Texas, 1925, with the~expressed intention that It be added to "Article 1459b",R. C. S. of 1911, and "be calledArticle 1459c." SinceArticles 1459a and 1459b were brought forward in the 1925 revision
as Article 1641, It Is apparent that the added statute (Article 1459c) shouldhave been more clearly codifiedwith Article 1641 and expressly refer therein to said article In lieu of Articles 1645 and 1646 as It presently reads. The foregoing error In the 1925 revision was early pointed out In an opinion of this departmentwritten by Honorable Bruce W. Bryant, First Assistant Attorney General, to the County Attorney ofWalker County, Huntsville, Texas, under date of October 5, 1931.Ron. R. A. McElrath, page 4

Former Opinions of this department as well as Court decisions therefore construedArticle 

### 1641and 1646a, R. C. S., 1925, together ,inpassing upon questions similar to thoseherein presented, relating to a'special audit.

In Cochran County v. WestAudIt Company 10 S. W. (2d) 229, the Court held that underArticle d46a the Commissioners'Court of Cochran County would be &thorized to emplo with Article 

### 16

iian auditor without a rigid compliance 1, statute, and that this statute,being a special

would control overArticle 

### 2368. The last named article, has since

relating to competitivebidding for contracts, been repealed and reenacted, as Article 2368a, Vernon's Annotated Civil Statute, wherein it containsa proviso exempting from.thepublication requirements ,of the statute contracts for personal or for professional services or for work done by the county and paid for by the day, as suchwork progresses.

We note that in the Cochran County Case,~ above mentioned, the court found that the order of the~Commlssioners' Court did In fact lie over untll~after the next regular term when It was passed, but as to further objections levelledagainst the auditing company onfailing to meet other requirements ofArticle 

### 1641,supra, as affecting the validity of the contract,no discussion of same ap;~ pears In the opinion. Recovery was permitted quantummeruit and writ of error refused.

In a later case,West Audit Company v.Yoakum County, 

### 35 S. W. (2) 404, It appears the companyhad brought the action on a contract for an audit made with Yoakum County and in the alternative, soughtrelief on an implied contract based upon quantum merult. We quote from the opinion oftthe Cottmlsslon

of Appeals, SectionA, written by Justice Sharp:



### by In "It is undisputed that the provisions of Article 

### 1641were not compliedwith inmaking the contract In controversy. -In our opinion We&Audit Company can not recover upon a written contractmade with Yoakum County to audit Itsbooks."

The Yoakum County Case appears to be the last case any Appellate Court in which Article 

### 1641was considered. view of the above quoted language found in that opinion,Hon. R. A. McElrath, page 

### 5

it is our opinion that your first question and the first of the two alternative questions embraced in your second question shouldbe answered in the affirmative, and they are so answered.

Our Opinion Ho. 

### O-96 ishereby overruled, Insofar
as it is in conflictwith this opinion.

APPROVED SEP 

### 30, 1943 Yours very truly,

Grover Sellers FIRST ASSISTANT ATTORNEY GWERAL ATTORNEY GRNERAL OF TEXAS



### Bs /RI Km. J. R. King Assistant

APPROVED OPINXON COMMITTRE