MARKWHITE Attorney General 

# The Attorney General ofTexas

June 9, 1980

Honorable Joe D.LeMay Coleman County Attorney Coleman, Texas 76834 Opinion No. MW-194 Re: Effect of article 1645on the office ofcounty auditor inacounty with a tax valuation of under $35,000,000. Dear Mr.LeMay: You have asked whether arecent amendment to article 1645,V.T.C.S., automatically abolishes the office of county auditor in a county valuation ofunder $35,000,000. Article 1645, V.T.C.S., which requires the appointment auditors incertain counties, now provides:

In any county heving a population of 35,000 inhabitants or over according to the last preceding Federal Census, or having a tax valuation of $35,000,000 or over according to the last approved tax rolls, there shall be appointed every two years an auditor of accounts and finances, the title of said office to beCounty Auditor, who shall hold hisoffice for two years .... .tith atax
of county

Acts 1979, 66th Leg., ch. 395, at 870; see Attorney General Opinion H-571 (1975). - The 1979 amendment to article 1645 V.T.C.S., increased the tax valuation figure of the statute from $15,000,000 to $35,000,000. Coleman County has apopulation ofunder 35,000 inhabitants and aproperty valuation of more than $15,000,000 but less than $35,000,000. Prior to the effective date of ‘the amendment it was required to appoint an auditor every two years. It isnolonger stiject to this requirement. The commissioners court has moreover voted to terminate the position ofauditor.

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In our opinion, the office of county auditor was not abolished as of the effective

. . . date ofthe statute. While tne legislature would have been able toabolish the office inthe middle of the auditor’s term, we do not believe it intended to dosohere. The statute is phrased in terms of the requirement to appoint an auditor. Webelieve the appropriate time to determine whether a county must comply with the statute is at the time of appointment. Thus, the incumbent may serve out his two year term. See Attorney General Opinion O-4903 (1942). At that time, article 1645, V.T.C.S., woumno longer require Coleman County tohave anauditor. Wenote that Attorney General Opinion H-1065 (1977)gave adifferent interpretation to the following language ofthe statute creating the State Board ofMorticians:

No member shall be appointed to the Board who is an officer or employee of a corporation or other business entity controlling or operating, directly orindirectly, more than three funeral establishments, if another member of the Board is also an officer or employee ofthe same corporation orother business entity. V.T.C.S. art. 4582b, §2A(5). The opinion determined that the qualifications for appointment must continue to be present throughout the employee’s tenure of office. When he no longer possessed those qualifications, he lost his right to serve. See also Attorney General Opinion H-578 (1975). However, this conclusion was based on the legislative policy that required representation of various interests on the Board. This policy is not present inarticle 1645,V.T.C.S., where only the requirement that the county have anauditor has changed, and not the auditor’s qualifications to serve. You also ask whether it is necessary for the commissioners court to take action under article 1646, V.T.C.S., to keep the office of county auditor in a county of under $35,000,000 tax valuation. Once the present auditor’s term is completed or a vacancy otherwise occurs, the county would have to take action under article 1646, V.T.C.S., to keep the office of auditor. It must find such action to be of public necessity, and the district judges of the county must find the reasons set forth by the commissioners to be “good and sufficient.” The district judges have the authority to make the appointment, fix the salary and discontinue the services of the county auditor if it is clearly shown that there isnopublic necessity. SeeC, 146S.W.2d 170(Tex. 1941). - SUMMARY

A recent amendment to article 1645, V.T.C.S., releasing some counties from the requirement that an auditor be appointed does not abolish the office until the term isup. After the term isover,

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the county would have to take action under article 1646,V.T.C.S., to keep the office ofauditor. >iwhm~

MARK WHITE Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General TED L.HARTLEY Executive Assistant Attorney General Prepared bySusan Garrison Assistant Attorney General APPROVED: OPINION COMMITTEE C.Robert Heath, Chairman Walter Davis Susan Garrison Rick Gilpin Bruce Youngblood

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