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.   We quote             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 same time, provided         the
         additional   county should come under the provisiona
         of Art. 1646 - Vernons Civil     Statutes   of Texas."

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

               'No person shall hold or exercise,               at the same time,
         more than one civil         office     of emolument, except that of
         justice   of peace,      county     commissioner,      notary public
         and postmaster,       officer      of  the   National   Guard, the Na-
         tional   Guard Reserve,        and the Officers        Reserve Corps
         of the United States,          and enlisted        men of the National
         Guard, the National         Guard Reserve,         and the Organized
         Reserves    of the United States,            and retlred     officers     of
         the United States Army, Navy; and Marine Corps, and
         retired   warrant officers,           and retired     enlisted     men of
         the United States Army, Navy, and Marine Corps, unless
         otherwise    specially      provided       herein.    Provided,      that
         nothing   in this Constitution             shall be construed        to
         prohibit    an officer      or enlisted        man of the National
         Guard, and the National            Guard Reserve,      or an officer
         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, and Marine Corps, and retired                   warrant
                                                                                                     .       -

                                                                                                 .       .


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



        officers,     and retired    enlisted  men of the United States
        Army, Navy, and Marine Corps, from holding          in conjunc-
        tion with such office        any other office   or position     of
        honor,    trust  or profit,     under this State of the United
        States,    or from voting at any Election;       General,    Spe-
        cial or Primary,       in this State when otherwise      qualified.‘!

             Article 1641, Vernon’s               Annotated       Texas    Civil     Stat-
utes,    reads as follows:

              “Any commissioners             court,    when In its judgment an
        imperative       public     necessity       exists     therefor,       shall
        have authority          to employ a disinterested,                 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,
        and other institutions              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
        misconduct,        will    ful ommission or negligence                  in records
        and reports,        misapplication,          conversion        or retention
        of public       funds,     failure      in keeping accounts,             making
        reports     and accounting           for public       funds by any officer,
        agent or employee of the district,                      county or precinct,
        including       depositories,         hospitals,       and other public            in-
        stitutions       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 approprla-
        tion and expenditure             of public moneys, and to ascertain
        and f-ix a just and proper tax levy.                       The said resolu-
        tion 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,              and
        shall be published             in one issue of a newspaper 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 which shall be at the
         court house door,           for at least        ten days prior           to Its
        adopt ion.        At such next regular             term said resolution
         shall be adopted by a majority                  vote of the four com-
        missioners’        of the, ooulrt and approved by the county
         judge.      Any contract        entered      into by said commissioners’
Hon.    Claud Wolf,     Page 3     (O-2684)



        court. for the audit provided         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 accor-
        dance 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     Tao the powers givenherein            to the
        commissioners1     court."

             Article 1645, Vernon's          Annotated    Texas    Civil   Stat-
utes,    reads In part as follows:

              "In any county having a population              of thirty-
        five thousand (35,000) inhabitants,               or over,     ac-
        cording    to the preceding        Federal     Census, or having
        a tax valuation        of Fifteen     Million    Dollars     ($15,000,000),
        or over,     according     to the last approved tax rolls,
        there shall      be biennially      appointed     an Auditor       of
        Accounts     and Finances,       the title     of said officer        to be
        County Auditor,       who shall hold his office            for two (2)
        years,   and who shall receive           as compensation        for his
        services     One Hundred and Twenty-five           Dollars      ($125)
        for each million        dollars,    or major portion         thereof
        on the assessed        valuation,     the annual salary         to be com-
        puted from the last approved tax rolls;                 said annual
        salary    from county funds shall           not exceed Three Thou-
        sand, Six Hundred Dollars            ($3,600).    + + +.v

             Article 1646, Vernon'sAnnotated               Texas   Civil   Stat-
utes,    reads as follows:

              "When the Commissioners'        Court of a county,
        not mentioned and enumerated in the preceding
        Article   shall determine       that an auditor      is a pub-
        lic necessity     in the dispatch      of the county busi-
        ness,   and shall   enter an order upon the Minutes
        of said Court fully       setting    out the reasons      and
        necessity    of an auditor,      and shall     cause said
        order to be certified        to the District       Judges hav-
        ing jurisdiction      in the county,       said Judges shall,
        if such reason be considered          good and sufficient,
        appoint a County Auditor,          as provided     in the suc-
        ceeding Article,      who shall qualify        and perform
        all the duties     required     of County Auditors       by the
        Laws of this State;       provided    said Judge shall have
        the power to discontinue          the office    of such County
        Auditor at any time after          the expiration      of one
Hon.    Claud Wolf,    Page 4      (O-2684)



        year when It Is clearly    shown that such Auditor
        is not a public  necessity   and his services are
        not commensurate with his salary received;    * * *.'I

             Article 1646a,      Vernon's     Annotated     Texas    Civil   Stat-
utes,    reads as follows:

              ')The colmnlssionersl     court of any county under
        twenty-five      thousand population     according    to the
        last United States       census may make an arrangement
        or agreementwith       one or more other counties       where-
        by all counties,       parties   to the arrangement     or
        agreement,     may jointly     employ and compensate a
        special     auditor   or auditors    for the purposes    spec-
        ified    in Articles    1645 and 1646.      The county comm-
        issioners'      court of every county affected        by this
        article     may have an audit made ofall         the books of
        the county,      or ang 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."

               This department held,          in an opinion     written      by Hon.
Bruce W. Bryant,         First Assistant         Attorney   General,     dated
October      5, 1931, and recorded           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, was a mis-
nomer caused by an error             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   Stat-
utes 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 a popu-
lation     of less than 25,000 population,              make an arrangement
whereby they could jointly               employ and compensate a special
auditor      or auditors      for the purpose specified           in Article
-Revised             Civil    Statutes.       The opinioa,~aiSa~he~d:'t~at
such an auditor         was a special        auditor   and was an entirely
different       type of auditor        from-f            a county auditor
whose office        was authorized        under Articles      1645 and 1646,
RevisedCivil         Statutes     and whose 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.            We think the above
opinion      is correct      and we hereby approve same.            We enclose
herewith       a copy of said opinion           which contains     a compre-
hensive      discussion      of the matters involved          therein.
Hon. Claud Wolf,          Page 5   (O-2684)



           A county       auditor is clearly a county         officer.           He
takes    an official       oath and makes an official         bond.

             A special      auditor,  as provided     for    in Article          1641,
supra,    clearly    is    not a county officer.

          Article     16, Section   40 of our State Constitution,
would clearly     prohibit  a person from holding     office      as
county auditor     in two counties     at the same time, just the
same as it would prohibit        a person from holding     offlce    as
County Judge in two counties        at the same time.

           However, Article  16, Section            40 of our State Con-
stitution,   would not apply to special             auditors, who are not
county officers.

         It is therefore  the opinion  of this department
that a person may not legally  hold office   or serve as
county auditor for more than one county at the same time.

           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 a population       of less than 25,000 population,
make an arrangement      whereby they could jointly         employ and
compensate a special      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 a county officer.

                                                     Very    truly       yours

                                                ATTORNEXGENERALOF TEXAS
APPROVEDSEP 9, 1940
/s/ Gerald C. Mann
ATTORNEYGENERALOF TEXAS
                                                BY     /s/    Urn J.      Fanning
                                                              Urn J.      Fanning
                                                                         Assistant

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