Mr. W. B. Lane
County Auditor,  Dlmmlt County
Carlzzo Sprinps, Texas
Dear Mr. Lane:
                       Opinion l'Zo. O-96
                             Power of Co



            Your letter of Jan                 requests   an opinion
Srom thls   Department on the
                                             urt of 8 aounty
      of less than 2                        rdlng to the last
    ' United States                         he authority to
                                              for the purposes
                                              1646% without
                                              of the County

                                     wer to the above In
                                     ary that the above
                                  ors be a resident of the

                       5 and 1648 deal strlotly      with the ap-
                        aounty auditor.     Article    1645 deals
                       f % oountp auditor in a oounty having
                                  aooordlng to the last Federal        - ~
oewus or            tax valuation  of fifteen    mllllon dollars
or over.            646 provides for the appointment oi an
auditor in a oounty having a population     of lums than 35,000
and provides that for good cause shown, the Commissioners*
Court oan enter an order upon the Minutes of said oourt and
oan oause said order to be oertlfled    to the District     Judges
Mr. U. B. Lane, January 13, 1939, Page 2




having jurlrdlotlon   In the oounty and suoh District   Judge8
shall,  if suoh reason be ooosldered  good and suiflolent,   appoint
a oounty auditor in line with the mathod presdrlbed by Artlole
1647.
            The question8 propounded by you ciearly    remove the
neoeaelty   for a oonslderation   of Articles  1645, 1646 and 1647,
and it is apparent that the purpose of your Inquiry Is to de-
termine whether or not a Commlrslonere Court In a oounty ot
lees than 25,000 lnhabitentr     has the authority to appoint 8
sneolal auditor.      This being so, your situation  is to be oon-
trolled   by Artfolee   1641 and 1646a of the Revleed Civil Statutes
OS Torea.
           To arrive at a olear underetandlng of Artloler   1641
and 1646a, it will be neoeaeary to review tile hletory ot euoh
articles.    By Chapter 80, Aots of the Regular Session of the
58th Legislature,   Artloles 1469a and 145Qb were added to the
Revised Civil Statutes of 1911.    These articles were brou(;ht for-
ward In the Revised Clvll Statute8 of 1925 8s Article    1641.
             By Chapter 67, Aots o? ,the Regular Session of the 39th
Legislature,    Artlole   14690 was added to the Revised Civil Statutes
of 1911.     This Artiole   reads aa follows:
           “The Commi6sloners* Court of any county under
     25,000 population  aooordlng to the last United States
     oeusus may make an arrangement or agreement with one
     or more other oountlee whereby all oounties,     parties
     to the arrangement or agreement, may jointly     employ
     and oompensate a speolal   auditor or auditors for the
     purposes speolfled  In Artloles   1459% and 1459b.    The
     County Commissioners* Court OS every county #footed       by       1
     thlr artloie  may have an audit made of all of the books
     of the county or any of them at any time they may de-
     alre, whether such arrangements oan be made with other
     oounties or not; provided the Dletrlot    Judgeor Grand
     Jury may order said audit if either so deslre8.e
            This article    has been brought forward 8s Article      1640%.
This article    now provider that R... may jointly     employ and com-
pensate a speoial    auditor or auditors ror the purposes specified
in Artloles1645    and 1646.”     This 18, no doubt, an brroneoum
 reference   as to artlole   numbera, for In the origlnaf    Article
 14890 of the Revised Clrll Sta!:uter of $911, it was provided
 that; 0.e. may jointly     employ and oompensato a speolal    auditor
 or auditors for the purpoeee- speolfied     in Articles  1459% and
 1459b, whloh artloler     oompose the present Artiole   1541.    This
 being true, Article     1446a oi our present atatutee should pro-
’ Kr.   iy. B. Lana, January 13, 1939, Page 3



  ride that the Commlsslonsrs Court (I... may jointly employ and
  oompensate a special auditor or auditors for the purposes specl-
  Sled in Article 1641.n
                Artlols    1641 of the Revised      Civil   Statutes   of 1925
   reads    as follows:
                   “Any oonralssloners    oourt, when in lto judgment an
            imper%tlvs pub110 neoesslty        sxlats therefor,      shall have
            authority   to employ a disinterested,         oompetent and ex-
           part pub110 aocountant to audit all or any part of the
           books, records,      or aooounte of the‘oounty;         or of any
           district,    oounty or preolnot orricers,         agents or em-
           ployee,    lnoludlng auditors of the oountlea,           and a11 gov-
           ernmental units of the county, hospitals,             farms and
           other lnstltutlons       of the oounty kept and maintained
           at publio expense, a0 well as ror all matters rel%t-
            ing to or atfectln~      the rlsoa> affairs      of the oounty.
           The resolution      providing   for suoh audit shall recite
           the re%sons and neosssity        existing   therefor     euoh as
           that in the judgment oi said court there exists offi-
           cial mlsoonduct, willful        omission or negllgenoe        in re-
           oords and reports,       mlsapplloatlon,    oonverslon     or re-
           tention of public funds, failure          in keeping aocounts,
           making report.6 and accounting for public funds by any
           officer,    agent or employs of the district,           oounty or
           preolnot,    including depositories,       hospitals,     and other
           pub110 institutions       maintained for the public benefit,
           and at pub110 expense; or that in the judgment of the
           oourt, it Is necessary that It have the information
           aou@t to enable it to d etennlne and fix proper appro-
           priation    and expenditure of public moneys, and to %s-
           certain %nd fix a just and proper tax levy.               The s%ld
           resolution    may be presented in writing at sny regular
           or oalled session of the oommlasloners oourt, but shall
           lie over to the next regular term of said oourt, and
           shall be published in one issue oi % newspaper of
           general olroulatlon       published in the oounty; provided
           if there be no such newspaper published in the county,
           then notice thereof shall be posted in three public
           places in said oounty, one of which shall be at the
           court house door, ror at leaat ten days prior to Its
           adaption.     At suoh next regular &or!%s%ld resolutlon
           shall bo adopted by a majority vote of the four oom-
           mlsaloners     of the oourt and approred by the oounty
           NM.        Any  contract sntered into by said oommlssioners
           oourt for the audit provldsd herein shall be mede in
           accordance with the etatutes         applloabls    to the letting
           of oontraots by sald court, payment for which m%y bo
           made out or the public funds of the oounty ln aooord-
           anoe with eald rtatutos.         The authority oonforred on
           oounty audltore oontained in this title            as well as other
           provisions    or statutes rolntlne       to district,     oounty and
,.,




Mr. ‘A. B. Lane, January 13,      1939, Page 4                                  ?“q
                                                           ..


      preolnot   flnanoes and aocounte      thereof shall bz~
      hold subordinate to the powers        given herein to the
      oon0ilsslon4rs~   OOurt.R
            Thus if o%n be aeon that Artlolea ,1441 and 1444a of
 the Revised Clrll Statutes ot 1925 deal with ths right ot the
 Commlssloners Court to provide for an audit by an eooountant
 or % sDeola1 auditor.
           Bearing in mind that the present Artlole    1441, oom-
posed 8s it is of Articles   1459% and 145Qb ot the Revised 01~11
Statutes or 1911, w%s paesed by the 3Sth Leplslature      at its
reguler  Session and the prssent Article   1444a, formerly Arti-
014 14490 0t the Revised 01~11 Statutes of 1911, wae parsed by
the rsgular session of the 39th Leglslaturs,-    it la logioal   to
assums that euoh +rtlolo 1444a must be oonstrusd aa a llberal-
lsatlon  statute.  This opinion la eipressed   by Judge Jackson
ot the Amarillo Court of Civil Appeals in the oase ot Coohran
County YE. West Audit Company, reported in 10 9. W. (2) 229.
The Court says:
              “Under Artlolo  l444a w4 %ro lnollned    to ths
        view that the Commlsslonere* Court of Coohran County
        would be authorized to employ an auditor without a
        rigid compliancs with Artlcls    1441.”                      j.,J
                               J
              The writer la lead to the opinion that ths Legislature
 in the passags of Artlols     1444% had no intention    or desireto      re-
 peal Artlole    1441 or any part thereof,    but rather to llberallze
 the oompllanos with Artlols      1441 if events and circumstances
 justlty    the Commlrsioners~ Court In acting in euch a mannor as
 to dlspenss with the strlot requirements ot Article        1641.
            You are, theretorr, respectfully    advised that it is 1
 the oplnlon of this Depertmont that a 4ommlssloners1 Court of
 a oounty ot less than 25,000 pppulatlon,    according  to the last
 United States Federal census, has the authority to employ a
 sp401%1 auditor or auditor4 without obtaining the approval
 or permission of the Oounty Judge.
             Article  1441 apeolfloally  pr.ovldes that the action
 of the Commlosloners* Court muet be by % majority of the tour
 members of the Commlesloners ) Court and approved by the County
 judg4.    This provision 1s not contained,     however, in Artiolo
 1444a, nor does Article    1444a require the approval of the
 Dlstrlot   Judge.   It merely provldse that in the event the Con-
 mleslonsrs~   Court does not appoint a special auditor that the
 Dlstrlot   Judge or thr Grand Jury may order suoh audit if either
 doslres that the same bs had.
lb.   1.   B.    Lsne,   January,\3,    1939, Page 5


           You are further advised that it is the opinion
of this Department that it is not neoessary’that  the spa-
oial auditor provided for by Artlolo  1644a be a resldsnt
of the oounty in which he is appointed.
                 Trusting   that this    satlefaotorlly       anowors your
inquiry,        I am
                                                   Yours very truly
                                           ATTORNEY
                                                  G%?E&U OF TEXAS


                                           J@ll-               L;Fs”I
                                                     \    ’      Assistant
LA:BT
APPROVED
       :

      U.-&Q
ATTOREISY G!?+MERAL
                 OF TEXAS
