                        The Attorney                General of Texas

                                             June    9,   1980
MARK WHITE
Attorney General



                   Honorable Joe D. LeMay                        Opinion No. MW-194
                   Coleman County Attorney
                   Coleman, Texas 76834                          Re:    Effect of article 1645 on the
                                                                 office of county auditor in a county
                                                                 with a tax valuation       of under
                                                                 $35,000,000.

                   Dear Mr. LeMay:

                           You have asked whether a recent amendment     to article 1645, V.T.C.S.,
                   automatically   abolishes the office of county auditor in a county .tith a tax
                   valuation of under $35,000,000.

                          Article  1645, V.T.C.S., which requires       the   appointment       of county
                   auditors in certain 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 be County Auditor, who shall hold his office
                               for two years . . . .

                   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 a population of under 35,000 inhabitants and a property 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 is no longer stiject    to this requirement.    The commissioners     court
                   has moreover voted to terminate       the position of auditor.




                                                     p.   628
Honorable   Joe D. LeMay    - PageTwo        (Mw-194)




       In our opinion, the office of county auditor was not abolished as of the effective
                               . .      .
date of the statute.    While tne legislature    would have been able to abolish the office in the
middle of the auditor’s term, we do not believe it intended to do so here. The statute is
phrased in terms of the requirement          to appoint an auditor.  We believe 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 to have an auditor.

      We note that Attorney General Opinion H-1065 (1977) gave a different interpretation
to the following language of the statute creating the State Board of Morticians:

            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 or indirectly,   more than three funeral establish-
            ments, if another    member      of the Board is also an officer       or
            employee of the same corporation      or other 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 in article 1645, V.T.C.S., where only the requirement       that the county
have an auditor 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 is no public necessity.   See C,
146 S.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 is up. After the term is over,




                                              P.   629
.   .




    Honorable   Joe D. LeMay    - Page Three    (Mw-194)




                 the county would have to take action      under article   1646, V.T.C.S.,
                 to keep the office of auditor.

                                                >iwhm~



                                                  MARK         WHITE
                                                  Attorney     General of Texas

    JOHN W. FAINTER, JR.
    First Assistant Attorney General

    TED L. HARTLEY
    Executive Assistant    Attorney   General

    Prepared    by Susan Garrison
    Assistant   Attorney General

    APPROVED:
    OPINION COMMITTEE

    C. Robert Heath, Chairman
    Walter Davis
    Susan Garrison
    Rick Gilpin
    Bruce Youngblood




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