HonorableVernon D. Adcock Opinion No. WW-1142

CountyAttorney Dawson County Re: Construction of Article Lamesa, Texas' 1645,Vernon's Civil Statutes, relative to
Dear Mr. Adcock: appofntment of a County Auditor for Dawson County.
You state in your request for an opinion that the population of Dawson County according to the 1960 Federal Census was 19,185; and, the 1960 tax valuation, the last approved tax roll,was $24,379,350. Also, you state that the county. lieswithin only one judicialdistrict, the 106th. Finally, you point out that a County Auditor has neverbeen appointed In compliancewith Article 1645,Vernon's Civil Statutes, and that Dawson County during all of the period since It came under the provisions of this Article has continuedwith an annual audit being made by contractbetween an out of county auditor and the County Commissioners Court. The costs of this audit have been of a county auditor. much less than the anticipated salary

In view of following questions: the foregoing circumstances,you ask the

1) May the Judge of the 106th District Court further delay the appointment of an auditor for Dawson County?
pointment? a. If so, how much longermay he delay such ap2) What, 9f any, are the legalpenalties or hazards which might result by delaying such appointment?

. Article 1645,Vernon's Civil Statutes, as amended In 1955, provides, In part, as follows:

"In any county having a population of 35,000 inhabitants or over according to the last preceding Federal Census, or having a tax valuation of $15,000,000 or over accori As. there shall beiingto the last annroved tx nnointed everv two vears an audltor of accounts andaflnances, the title of said office to be County Auditor,who shallhold. 'HonorableVernon D. Adcock, Page 2 (WW-1142)

his office for two years and who shall receive as compensation for his servicesan annual salary from the County General Fund of not more than the amount allowed or pa-idthe Assessor-Collectorof Taxes in his county, such salary of the County Auditor to be fixed and determinedby the District Judge or District Judgesmaking such appoint(nent

and having jurisdictionin the county,

. . . (Emphasisadded) Attorney General's OpinionNo. O-4828 (1942)held on facts substantiallyidentical to those presentedhere that Articles 1645and 164emade it mandatory that the Judge of the 23rd JudicialDistrict of Texas appoint a county auditor for MatagordaCounty, inasmuchas the last approved tax valuation for the countywas in excess of $15,000,000.

Also, Article 1647,Vernon's Civil Statutes, entitled "Appointment"provides:

"Thedistrict judgesshavingjurisdictionin the county, shallappoint the county auditor at a special meeting held for that purpose, a majorlty ruling; provided, that if a majority of such judges fail to.agreeupon the selectionof some person as auditor, then either of said judges shall certify such fact to the Governor, who shall.thereuponappoint some other district judge to act and vote with the aforesaid judges in the selectionof such auditor. The action shall then be recorded In the minutes of the district court of the county and the clerk thereof shall certify the same to the commissionerscourt,which shall cause the same to be recorded in its minutes togetherwith an order directing the payment of the auditor's salary." (Emphasisadded)
Because Dawson County has at present a tax valuation well In excess of the specified statutoryamount, it clearly falls within the classificationset out in Article 1645. Thus, it is our opinion that It is mandatory that the Judge of*the 106th JudicialDistrict, the only District Judgehaving $urlsdictionover Dawson County, appoint a regular county auditor for the county. Being cognizant of the fact that the provisions of Article 1645are mandatory, it is our opinion that this appointment shouldbe made without any further delay.--

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HonorableVernon D. Adcock, Page 3 (W-1142)

County CommissionersCourts are of limited jurisdiction In that their authority extends only to matters pertaining to the generalwelfare of their respective counties, and that their powers are only those expressly or impliedly conferred upon themby the Constitutionor the Statutes of the State. 11-B Tex.Jur. 83, Counties, Sec. 65.

We have found no constitutionalor statutoryprovision that either expresslyor by implication confers the authority upon the CommissionersCourt of counties of the classification of Dawson County to appoint or otherwise contract with an auditor to audit the accounts and finances of the county.

In answer to your second question,we direct your attention to Articles 5964 and 5965,Vernon's Civil Statutes, which provide for the removal of a District Court Judge for willful neglect of duty or officialmisconduct.

SUMMARY Article 1645,Vernon's Civil Statutes,makes It mandatory that the Judge of the 106th Judicial District Court, Dawson County, appoint a regular county auditor. This appointment shouldbe made without further delay In that the failure to do so may result In removal procedeeings under Artlcles 5964 or 5965,Vernon's Civil Statutes.
Yours very truly,

IRWjr:mm/ds

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Vernon Teofan Bob Shannon IolaWilcox REVIEWEDFOR THE ATTORNEY GENERAL BY: Houghton Brownlee, Jr. WILL WILSON