-: .,, . .

Ron. clalla

wolf CountyAudlt&r Rowasdcounty Big Spring,

Texas,, oplilion No. o-l338

Re: Reganllese

of the lew le set out in Art. 1645a,Imy any oounty,when It ia deemedneaeeeerg by the Ccmmlsslonere'

court and dietriot judge or judgea, appoint en Auditor and fix:Qlie

rleryand, if the comm1ealoners

' courtiso

dee Ire8 , may It direct euc@ Auditorto act also PB Purchislug Agent?

Your requestfor an oplnlonon the above statedquestti, togetherwith other queetlone incidental

thereto,

ha8 been received

by this depprtment

. Your leet$er

reads as follow:

"I will appreciate

your opinionon the fol.lowlng queetione:

"Art. l@k% Vernon's Annotated

Civil Statute8 naya Impart: that all,~ountles havinga population of not less than twenty four thmraadd one hundred aud twentyfive (24,125) nor more than twetity four thousand

one hundredana fifty (24,150) acaordlng

to the laatprecedlngF~deralCeneu8, and employing

a CountyAMi+, eald CountyAtiltor in tiltion to the regular

duties perfomed by him ae required by law,,ahpll

aa% a.~ P+rohreing

Agent for the county when 80 directed

by the Comaieslonem Court of such county.

~: "'&bee

thismean that ip mah cemxtyhad a popu1pjlon of 24,12Lcor 26,151 thie law would not apply?Ron. Claud Wolf, Page 2 (04338)

**nArt.** 1645s~3 says in 8ubstanoe that auy county **having** less chau $15,000,000 Fifteen

Milliondollars tax aluatiou and a population of not lesa than 20,100 nor more thm 20,150 may employan auditor t&m& Ccdmulselonere Court if sold Court demd:.euch atiitora

setices necessary.
*Does thismean that the populationwould have to be literallybetweentheae two figureslnorderfor this lew to apply,and that a aounty with a tax valuation of lose than $15,OOO,OOC cau not avail thmnselOaa of the earvicer

of an auditor

unless the population Is exactly

b&wean 20,100 sud 20,150?
"tit. 1646 mtya in su~tanaethatany countynot enumerated

in the precedlugArticle shalldetarmins that au auditor is a public neoeesity

can through

the Cdsslonere Court aud District Judge hve the services of such auditor, provided

t&et at my time titer one year if in the opiniouof the District Judge the servloes

are notaeceasary he may diecontinue same. 'Qoee thismean that regardless of the law (~61

eet out in Art. 1645pany oouutymay when deemed necessary by the CommissIonera Court and Diatrlct

Judge or Jdgea, mayappointen audltoroudfix his snlary,d that if the Comisslouers Court BO desirestheymay direct such auditorto act also aa Purchasing Agent?"

In anewer to your firet sad second questions, apart from any oonslderation

of tie constitutionelity of the etatutma

mentioned by you, we'respeotfull$ advise thet the counties to which various statutes

apply, according

to population

or to osseesed

property

valu;ltion, are fixed within certain bra&eta. As aaid in the case of Hall va. Bell county, 1.38 S.W. 180:
~"Itmay be,as urged tithe argument, that there pee countiiea

In the class to which the law Is made applicable, the~pepulotion of which very slightly exceed that of other counties

which a?e without it; end that It aeenm unreasonable

to meke a diecrlmlnation upon se slighta difference. To thla tht3 answer is the linemuat be drawn m7ae where, f+nd that a similpr

duty would probaMy result if the olaeslflcstlon werb mde upon any other .' b.%SlS.

Exact equalityin suchmattera, however

desirable, ie practically

unattaiuable."
We, therefore,

reply to queetlone

oue an8 two, a~ ~ontaiueb in mour letter,iu the effimative. However, may WC point out that we are not, in this opinion, pasaing

upon the question

of the constitutionality of the ata'mtes mentfoned

by you. AS reflecting the views of thisHon. cma wolf, Page 3 (o-1338)

departmnt on this question, pertaining

to other similarstatutes, we enclose

her&with,

for your infomatlon, a copy of en opinionto Hou. Frauk Wrl&ht,CountyAuditor, Ronham,Texas,by Ron. WILL J. Fanning,

Aselstaut

Attorney

General.
With reference

to your third question, above stated,

we would point out thatArticles 1646 and 1647, RevisedCivil Statutes 1925, ae emended,

plvviðat thoae couutles who are not ell@ble la have a County

Auditorbecause

of the lack of the necessarypopulathou, or the required tax valuation,

might have the beuefltof the services

of a County

Auditor,

upon ccmpliszu:ewlththe procedure

thereIn outlined

whereby such cm be done.
The salary

of suchAudItor,

however,le not fixed by the comtissloners~

court and/orby the dletrict judge or JU&XJ, imt Is fixed by the plainprovlsloua of Artiole 1645. In that article is fouud a yard stick by which every mch County Auditor% eelary may be detemlned, to-wit, $125.00 for each One Wllion Dollare, or major portionthereof on the aeaessed

valuation,

to be computed

from the last approved

tax roll. For your assi&auca, we are eucloeiug P copy of the exhaustive opinion

of Ebn. Rmce W. Rrymt to Eou. A. W. Emery, Couaty~Attorney, lacogdochea,

Texas,under date of May 19, 1939,ae reflecting the opinion

of t&La admlnl6tration touching

thle question.

You then ask if, underArtiolee 1646 and 1647, suoh appolutddCountyAuditor caube dlreoted

to act also lntheoapaclty Of Plmhaslng Agent of the county.

The powereaud dutlea of a County AudWiurare variouelydefined in Article 1651tw0ugh Article 1676, inclueive, Revised civil Stat&es 1525~aud

men&mute thereto. Nowhere lathe Amlitorauthorized to act aa Pmchaslng Agent under the Texas statutes.

Itcaubepresumedthatthe office of Purchaeing Agent, and the duties incident thereto,

ie a dietluct

capacity,

not embrace&

within the generalstatutea pertaining

to the officeof CountyAulltcm. The LegiSlatum has &ealt separably with such ln Article 1645-1, m to certaincouutlee,

stlpulatlng

that "ip addition

to the regular

dutlee -- performed

b U ae required

& law, 4 -- ehsll act as Purchaelng Agent for the county, and hau provlde~I foZn eddltlonal

eamy incident

to the CountyAuditoractlmgaa such. Furthsmore, Article 1646 contalm this provleloa~:

When the oommleaioners~ court of a county,

not mentioned

aud anumerated

in the preceding

articleshall detemlne that en Amlltor la a publicnecessityin the dispatch

of the countybuelness, and shall enter an order upou the minutes of said court fully setting out the reaeone

ml laecesaity

of an Auditor,

end shall causer&n. Cleud Wolf, Paere 4 (O-1338)

eald~Audltor,

to bk ctr&lf3ed.$o

thb d18trbuki

$u%ges having jurisdlotlon

lu the county,eald judgeeshall, If euch reaeonbe coueidered good aud sufficient, appoint

a county Auditores providedIn the suocecding article,

who ahell -- guallfysnd performall the duties required of County

Auditore by the ge of thisState." -- -- which "lews of this state",above referred to, do not include

the dutlea of a Purchaeing Agent. Therefore,

the duty of aotlngae Purohaeing Agentnot beiug prescribed

by law, lncldent

to the office of CountyAuditor, mud no oddlMona1 compensation being allowable

therefor,

you are reapeotfully advised that it is the opinion of this department that a CountyAuditor, appointed underArticles 1646 and 1647, couldnot be'direoted to.eetaleo In the capacity

of Purchasing

#gent for the county. Truetlngthat the foregoing amwere your luquiry,we remain,

Yours very truly,

BY Wm.J.Fauuing /e Wm. J. Fanolug Aselstant

WJF:AW

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GeraldMann /a A'M'ORNEYGENEBALOFTEXAS

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