OIRNEYGENERAL 

OFTEXAS 

AUR1IN 11. TlzxAs 

This Opinion 

Overrules Opinion O-96 

insofar as it conflicts 

vith this opinion. 

Honorable R. A. McElrath 

County Auditor 

Cooke County 

Gainesville, Texas 

Dear Sir: Opinion Ro. O-5533 

Re: Whether certain provisions 

of Article 1641, R. C. S., 

1925, are mandatory upon 

the Commissioners1 Court 

before entering Into a 

valid contract for an outside audit, and a related 

question. 

After quoting Article 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 it mandatory upon the 

commissioners1 court to have 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 commissioners will 

it be necessary that at least three commissioners 

vote for such adoptlon,,or may It be adopted by 

a vote of two commissioners and the County Judge 

with two Commissioners voting 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 imperative public necessity exists therefor, shall have 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, including auditors 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 such audit shall recite 

the reasons and necessity existing therefor such 

as that in the judgment of 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, 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 expendlture of public moneys, and to ascertain and fix a 

just and proper tax levy. The said resolution may 

be presented In writing at any regular or called 

session of the commissioners court, but shall lie 

over to the next regular term of said court, andshall be published in one issue of a newspaRer- 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 whfch 

shall be at the court house door, for at least ten 

days prior to its adoption. At such next regular 

term said 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 pro- 

‘vided herein shall be made in accordance with the 

statutes applicable to the letting of contracts by 

said court, payment 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. (Acts 1923, p. 170.)" 
.- 

Hon. J. A. McElrath, page 3 

Article 1646a. 

"The commissioners' court of any county under 

twenty-five thousand population ,accordlng to the 

last United States census may make an arrangement 

or agreement with one or more other counties whereby all counties, parties to the arrangement or 

agreement, may jointly employ and compensate a 

special auditor or auditors for the purposes specified in Articles 1645 and 1646. The county commlssioners' court of every county 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 arrangements can be made with 

other counties or not; provided the district judge 

or grand jury may order said audit If either so 

desires." 

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

"Any three members of the said court, lncluding the county judge, shall constitute a quorum 

for the transaction of any business, except that 

of levying a county tax. Id." 

In bringing Article 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 statute was enacted~ by the same' 

39th Legislature, Reg. Seas., which enacted~ Senate.Bill 382, 

Chapter 104, authorizing the preparation; printing, sale and 

distribution of the R. C. S. of Texas, 1925, with the~expressed intention that It be added to "Article 1459b", R. 

C. S. of 1911, and "be called Article 1459c." Since Articles 

1459a and 1459b were brought forward in the 1925 revision 

as Article 1641, It Is apparent that the added statute (Article 1459c) should have been more clearly codified with 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 department written by Honorable Bruce 

W. Bryant, First Assistant Attorney General, to the County 

Attorney of Walker 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 construed Article 1641 and 

1646a, R. C. S., 1925, together ,in passing upon questions 

similar to those herein presented, relating to a' special 

audit. 

In Cochran County v. WestAudIt Company 10 S. 

W. (2d) 229, the Court held that under Article d46a 

the Commissioners' Court of Cochran County would be &thorized to emplo 

with Article 16 ii 

an auditor without a rigid compliance 

1, 

statute, 

and that this statute, being a special 

would control over Article 2368. The last named 

article, 

has since 

relating to competitive bidding for contracts, 

been repealed and reenacted, as Article 2368a, 

Vernon's Annotated Civil Statute, wherein it contains a 

proviso exempting from.the publication 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 such work 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 levelled against the auditing company onfailing to 

meet other requirements of Article 1641, supra, as affecting the validity of the contract, no discussion of same ap;~ 

pears In the opinion. Recovery was permitted quantum meruit 

and writ of error refused. 

In a later case, West Audit Company v. Yoakum County, 35 S. W. (2) 404, It appears the company had brought the 

action on a contract for an audit made with Yoakum County 

and in the alternative, sought relief on an implied contract 

based upon quantum merult. We quote from the opinion oft the 

Cottmlsslon of Appeals, Section A, written by Justice Sharp: 

by 

In 

"It is undisputed that the provisions of 

Article 1641 were not complied with in making 

the contract In controversy. -In our opinion 

We&Audit Company can not recover upon a 

written contract made with Yoakum County to 

audit Its books." 

The Yoakum County Case appears to be the last case 

any Appellate Court in which Article 1641 was 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 should be answered in the affirmative, and they are so 

answered. 

Our Opinion Ho. O-96 is hereby overruled, Insofar 

as it is in conflict with 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