Hon. Claud Wolf

County Auditor Howard County Big Spring, Texas

Dear Sir: Opinion No. O-2684 Re: County Auditors - Special Auditors

Your request for opinion has been received and carefully considered by this department. Wequote from your request as follows:

"I will appreciate your opinion as to whether

or not I would be permitted to serve as auditor for
more than one county at the sametime, provided the additional county should come under the provisiona of Art. 1646- Vernons Civil Statutes of Texas."

Article 16,Section 40of our State Constitution, reads as follows:

'No person shall hold or exercise, at the sametime,
more than one civil office of emolument, except that of justice of peace, county commissioner, notary public andpostmaster, officer of the National Guard, the National Guard Reserve, and the Officers Reserve Corps of the United States, and enlisted menof the National Guard, the National Guard Reserve, and the Organized Reserves of the United States, andretlred officers of the United States Army, Navy; andMarine Corps, and retired warrant officers, andretired enlisted menof the United States Army, Navy, andMarine Corps, unless otherwise specially provided herein. Provided, that nothing in this Constitution shall be construed to prohibit an officer or enlisted manof the National Guard, and the National Guard Reserve, or anofficer in the Officers Reserve Corps of the United States,

or an enlisted 

### mm in the Organized Reserves of the United States; or retired officers of the United States Arms, Navy, andMarine Corps, andretired warrant. -

. .

Bon. Claud Wolf, Page 2 (O-2684)

officers, andretired enlisted menof the United States Army, Navy, andMarine Corps, from holding in conjunction with such office any other office or position of honor, trust 

### or profit, under this State of the United States, 

### or from voting at anyElection; 

### General, Special or Primary, in this State whenotherwise qualified.‘!

Article 1641,Vernon’s Annotated Texas Civil Statutes, reads as follows:

“Any commissioners court, whenIn its judgment an imperative public necessity exists therefor, shall have authority to employ adisinterested, 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 employees, including auditors of the counties, and all governmental units of the county, hoepitals, farms, andother institutions of the county kept andmaintained 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 andnecessity existing therefor such as that in the judgment of said court there exists official misconduct, will ful ommission or negligence in records andreports, misapplication, conversion 

### or retention of public funds, failure in keeping accounts, making reports andaccounting for public funds by any officer, agent or employee of the district, county or precinct, including depositories, hospitals, and other public institutions maintained for the public benefit, andat 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 approprlation and expenditure of public moneys, andto ascertain and f-ix 

### a just andproper tax levy. The said resolution maybe 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, and shall be published in one issue of anewspaper of general circulation published in the county; provided if there be nosuch newspaper published in the county, then notice thereof shall be posted in three public places in said county, one of which 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 amajority vote of the four commissioners’ of the, ooulrt andapproved by the county judge. Anycontract entered into by said commissioners’Hon. Claud Wolf, Page 3 (O-2684)

court. for the audit provided herein shall be madein accordance with the statutes applicable to the letting of contracts by said court, payment for which maybe madeout of the public funds of the county in accordance with said statutes. The authority conferred on county auditors contained in thistitle as well as other provisions of statutes relating to district, county and precinct finances and accounts thereof shall be held subordinate Taothe powers givenherein to the commissioners1 court."

Article 1645,Vernon's Annotated Texas Civil Statutes, reads In part as follows:

"In any county having apopulation of thirtyfive thousand (35,000) inhabitants, or over, according to the preceding Federal Census, or having

atax valuation of Fifteen Million Dollars ($15,000,000),

or over, according to the last approved tax rolls, there shall be biennially appointed anAuditor of Accounts and Finances, the title of said officer to be County Auditor, whoshall hold his office for two (2) years, andwhoshall receive as compensation for his services OneHundred andTwenty-five Dollars ($125) for each million dollars, or major portion thereof
on the assessed valuation, the annual salary to be computed from the last approved tax rolls; said annual salary from county funds shall not exceed Three **Thou** sand, Six Hundred Dollars ($3,600). +++.v

utes, Article 1646,Vernon'sAnnotated Texas Civil Statreads as follows:

"Whenthe Commissioners' Court of acounty, not mentioned and enumerated in the preceding Article shall determine that anauditor is apublic necessity in the dispatch of the county business, and shall enter anorder upon the Minutes of said Court fully setting out the reasons and necessity of anauditor, and shall cause said order to be certified to the District Judges having jurisdiction in the county, said Judges shall, if such reason be considered good and sufficient, appoint aCounty Auditor, as provided in the succeeding Article, whoshall qualify andperform all the duties required of County Auditors by the Lawsof this State; provided said Judge shall have the power to discontinue the office of such County Auditor at anytime after the expiration of oneHon. Claud Wolf, Page 4 (O-2684)

year whenIt Is clearly shown that such Auditor is not apublic necessity andhis services are not commensurate with his salary received; * * *.'I

Article 1646a, Vernon's Annotated Texas Civil Statutes, reads as follows:

')The colmnlssionersl court of any county under twenty-five thousand population according to the last United States census maymakeanarrangement
or agreementwith one or more other counties whereby all counties, parties to the arrangement or agreement, mayjointly employ and compensate a special auditor or auditors for the purposes specified in Articles 1645 and 1646. The county commissioners' court of every county affected bythis article mayhave anaudit madeofall the books of the county, or ang of them, at any time they may desire whether such arrangements can be madewith other counties or not; provided the district judge

or grand jury mayorder said audit if either so desires."

This department held, in anopinion written byHon. Bruce W.Bryant, First Assistant Attorney General, dated October 5, 1931, andrecorded in Vol. 326, pp. 830-l-2-3-4, Letter Opinions of the Attorney General of Texas, that Article.l646a, Revised Civil Statutes of Texas, wasamisnomer caused by anerror in the codification of the Revised Civil Statutes of 1925 and that said Article should have been denominated as Article 1641a of the Revised Civil Statutes of Texas. This opinion held that county commissioners' courts of counties under 25,000 population, could, either alone or in conjunction with other counties having apopulation of less than 25,000 population, makeanarrangement whereby they could jointly employ and compensate aspecial auditor or auditors for the purpose specified in Article -Revised Civil Statutes. Theopinioa,~aiSa~he~d:'t~at such anauditor was aspecial auditor andwasanentirely different type of auditor from-f acounty auditor whose office wasauthorized under Articles 1645 and 1646, RevisedCivil Statutes andwhose duties 

### were prescribed in thsarticles following. This opinion also held that there was no statute which authorized two or more counties to jointly employ a county auditor. Wethink the above opinion is correct andwehereby approve same. Weenclose herewith a copy of said opinion which contains acomprehensive discussion of the matters involved therein.Hon. Claud Wolf, Page 5 (O-2684)

Acounty auditor is clearly acounty officer. He takes anofficial oath andmakes an official bond.

Aspecial auditor, as provided for in Article 1641, supra, clearly is not acounty officer.

Article 16,Section 40of our State Constitution, would clearly prohibit aperson from holding office as county auditor in two counties at the sametime, just the

sameas it would prohibit aperson from holding offlce as County Judge in two counties at the sametime.

However, Article 16,Section 40of our State Constitution, would not apply to special auditors, whoare not county officers.

It is therefore the opinion of this department that aperson maynot legally hold office or serve as county auditor for more than one county at the sametime.

It is the further opinion of this department that county commissioners’ courts of counties under 25,000 popu-’ lation, could, either alone or in conjunction with other counties having apopulation of less than 25,000 population, makeanarrangement whereby they could jointly employ and compensate aspecial auditor or auditors for the purpose specified in Article 1641,ernon’s Annotated Texas Civil Statutes. However, such a special auditor would not be a county auditor nor would he be acounty officer.
Very truly yours

APPROVED

SEP9, 1940 /s/ Gerald C. Mann ATTORNEY

GENERAL

OFTEXAS ATTORNEX GENERAL

OFTEXAS

BY /s/ UrnJ. Fanning

UrnJ. Fanning Assistant WmJF:ob:jl Encl. APPROVED OPINION COMMITTEE By BWR/s/ Chairman,: