                              January   20, 1939



Mr. Van Hails McFarland                 Opinion No. O-88
County Attorney
Maverick  County                        Re:   Power of Commissioners      Court
Eagle Pass, Texas                             to provide for auditor

Dear Sir:

            Your letter of January 12, 1939,       requests   an opinion from
this Department on the following questions:

             ‘1.  Has the Commissioners    Court the power to enter an
order at the present time providing for periodical     audits to be made through-
out the year, either monthly or quarterly,   specifying who shall make the
audit, and what his compensation   shall be 7

               “2. If the court enters an order at the present time specifying
for periodical    audits throughout the year, and naming the person to make
the audit and prescribing     his compensation,   is it, by so doing, circumvent-
ing and violating the provisions     of Article 1646 wherein it is contemplated
that the regular auditor shall be appointed by the District       Judge 7

              “3. If the court enters an order at the present time providing
for periodic audits throughout the year and naming the person to make the
audit and prescribing    his compensation,   does the person so named become
a county auditor in such a way as to require him to comply with the provi-
sions of Article  1648 as to qualifications?    With Article 1649, as to bond
and oath ? ”

             Articles 1645, 1646, 1647;1648   and 1649, and the remaining
articles in such chapter, deal with the regular County Auditor, whereas
Articles  1641 and 1646x1 of the Revised Civil Statutes of Texas deal with
the appointment of an accuuntant or special auditor.

             To arrive at a clear understanding   of Articles   1641 and 1646a,
it will be necessary  to review the history of such articles.     By Chapter
80, Acts of the Regular Session of the 38th Legislature,     Articles  1459a and
1459b were added to the Revised Civil Statutes of 1911.       These articles
were brought forward in the Revised Civil Statutes of 1925 as Article        1641.
                                                                                          ,   .\
Mr;   Van Haile McFarland,     January   20, 1939,   page 2




              By Chapter 67, Acts of the Regular       Session of the 39th Legis-
lature, Article 1459~ was added to the Revised         Civil Statutes of 1911.
This Article reads as follows:

              “The Commissioners’     Court of any county under 25,000
       population ~according to the last United States census may make
       an arrangement   or agreement with one or more other counties
       whereby all counties, parties to the arrangement     or agreement,
       may jointly employ and compensate      a special auditor or auditors
       for the purposes specified in Articles    1459a and 1459b.   The County
       Commissioners’    Court of every county affected by this article may
       have an audit made of all of the books of the county or any 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 article has been brought forward as Article 1646a.         It
now provides that: ” * * * may jointly employ and compensate           a special
auditor or auditors for the purposes specified in Articles        1645 and 1646.”
This is no doubt an erroneous      reference   as to article number, for in the
original Article    1459~ of the R. C. S. of 1911, it was provided that: ” * * *
may jointly employ and compensate         a special auditor or auditors for the
purposes   specified in Articles    1459a and 1459b, which Articles     compose
the present Article     1641.  This being true, Article    1646a of our present
statutes should provide that the Commissioners         Court “may jointly em-
ploy and compensate      a special auditor or auditors for the purposes speci-
fied in Article   1641.”

             Article 1641 of the R.‘C. S. of 1925 provides the means by
which the commissioners’     court of a county may hire a disinterested    ex-
pert public accountant to audit its books, and provides among other things
that the Commissioners     Court shall pass a resolution to such effect and
permit the same to lie over until the next term of the court before final
action is had thereof, and provides for the publication of such resolution
in a newspaper of general circulation,    or in the event there is no news-
paper in the county, to post such notice in accordance     with the terms and
provisions  of such Article.   Thus it can be seen that Articles   1641 and
1646a of the R. C. S. of 1925 deal with the right of the commissioners’
court to provide for an audit by an accountant or a special auditor.

              Bearing in mind that the present Article         1641, composed as it
is, of Articles  1459a and 145913 of the R.CS.       of 1911, was passed by the
38th Legislature    at its regular session,     and the present Article    1646a,
formerly    Art. 1459~ of~the R.C.S. of 1911, was passed by the Regular Ses-
sion of the 39th Legislatur’e,    it is logical to assume that such Article       1646a
must be construed as a liberalization        statute; that is,‘it is construed as
.

    Mr.   Van Haile    McFarland,     January      28, 1959,    page     3




    liberalizing   the terms      and provisions     of Article        1641.

                 This opinion is borne out by Judge Jackson of the Amarillo
    Court of Civil Appeals in the case of Cochran County v. West Audit Co.,
    reported in 10 S. W. (2d) 229.   The court says:

                  “Under Article  1646a we are inclined to the view that
           the Commissioners’    Court of Cochran County would be au-
           thorized to employ an auditor without a rigid compliance
           with Article 1641. ”

                  The writer is led to the opinion that the Legislature   in the pas-
    sage of Art. 1646a had no desire to repeal Art. 1641, or any part thereof,
    but rather to liberalize   the compliance  with Art. 1641, if events and cir-
    cumstances    justify the Commissioners’    Court in acting in such a manner
    as to dispense with the strict requirements     of Art. 1641.  In other words,
    if, in the judgment of the Commissioners’     C,ourt, an imperative   public
    ne,cessity exists, the court is authorized to hire an accountant or special
    auditor for the purpose of adequately protecting the public interests.

                   It is fundamental that a Commissioners     Court is a court of
    limited jurisdiction,    deriving its powers from the Constitution and the laws
    made pursuant thereto.       In view of the fact thatArt. 1641 of the R.CS.  of
     1925 does not provide for nor gives the Commissioners         Court the express
     authority to enter into a contract with an accountant or special auditor, ex-
    cept for the fulfillment    of a specific purpose, it would not have the authority
    to enter into a contract providing for periodic audits to be made through-
    ,out the year.

                   Having     answered   your first     question       in the negative,       it becomes
    unnecessary       to answer    the second and third questions              asked   by you.

                  If an accountant or special auditor is named by the Commis-
    sioners’ Court under the authority of Articles     1641 and 1646a, it will not be
    necessary   for him to comply with the provisions     of Articles 1648 and 1649.
    Neither is it necessary    that he be a resident of the county in which he is to
    be appointed.

                   Trusting    that this satisfactorily        answers         your inquiry,     I am

    LA:MR :da                                                   Very     truly yours
    APPROVED
    /s/ Gerald C. Mann                                 ATTORNEY              GENERAL      OF TEXAS
    ATTORNEYGENERALOFTEXAS
                                                        By     /s/     Lloyd     Armstrong,      Assistant
