       OFFICE OF THE Al-CORNEY, GENERAL         OF TEXAS
                              AUSTIN



                                                           ,




Honorable i"l.
             P. Hems,   Jr.
County Auditor
Xnllor County
HeEpSt8ad, Texas

Dear Sir:




    Auditor's sa


                                       Senate Bill 119,




    bcgfnning of the fiBcal year January 1st next? Once
    tha inorenso In salary is approved and allowed by
    the Dlotriot ~udgo and subsequently by the Comis-
    sioners* Court, is It not within the District Judge's
    discretion to mt that salary in the future within
.   I




        Honorable IV. P. Herms, Jr* - Page 2


             the limits of the increase whloh was once approved
             by the Commissioners' Court?
                  "For instance, if the inorcaso as approved by'
             the District Judge and Co~issionars' Court made
             Auditors' salary $lBOO--above the minlnum as allowed
             undor the Statutes In 1940"-than when anothor ap-
             polntmcnt COIXS Dooembor It or when new fiaoal year
             begins January 1, is it not within the disoretion
             of the District Judge alono to reduce said salary
             below this figure?" -
                  ~Your letter of Uotober 23, 1941, supplementing the
        above mentionad letter reads In part as follows:
                   "AoOording to your request of Ootober 22, 1941,
             letter; please find inclosod a copy of the order of
             the Distriot Judge netting the aalary of the County
             Auditor, which is a part of and oombinod and includ-
             8d in the oortified copy of the Commissloners~ Court
             minutes approving and allowing the same.
                  "To ropeat, the question of most conoern, Is
             whother, when the Distriot Judge reappoints Auditor
             this Dceembar, he oon set said salary at $1200 again,
             for ths ensuing par, this timo without anotherap-
             proving order of tho Commissioners' Court, such hav-
             lng already been approved once, and before roappoint-
             mat was made.
                  *Otherwise, if the Diotrict sets the salary et
             $1000 in December when ho roappolnts, the Commission-
             ers' court having onoe approved this salary, is it
             neoossary for them to do so againo"
                  A aopy of the order of the district judge setting
        the aalery of the county auditor, which you advise,'wasapproved
        by the Commissioners1 COWA, reads a9 fOLlOwS:
                                           Wonroo, Texas,
                                            July 25, 1941
             "Honorable Commissioners~ Court
             Wailer County, Hempstead, Texas.
             Gentlem8n:
                  J.naocordanoo with Senate Bill No. 119 Of the
        I'   .47thLegislature just passed and approved by Governor
Honorable W. P. Herms, Jr. - Page 3


    % Lee O'Daniol, July 9, 1941, It is my ordor as
    District Judge of tho Ninth Judicial District, that
    the salary of W. P. Harms, County Auditor of Wailer
    County, who has beon legally appointed county Audi;.
    tor in aooordanoe with Artiole 1646 Civil Statutes
    of Texas, be Eighteen Hunarod ($1800.00) Dollars an-
    nually, el'feCtiV8hugunt 1, 1941, and shall continue
    until such time as it is doomed advisable to make a
    ohange in aooordanoe with tho laws of Texas*
                             W. B. Browser,
                             W. B. Browdor, Judge Ninth
                             Judioial Distriot of Texas.
    Filed with me&his 26 day of July, A. D. 1941,,
    Filed with me this 1 day of     A. 8. Foster, Dlstriot
    August, 1941. Dick Cuny, CO.,   Clerk, Wallor County
                   Clerk Wailer            T8XaS (Signed)
                   Co. Texas
    The Stat8 of Texas 1
    County of Wsller    0     I, A. F. Foster, Clerk of the
    District Court in and for Wailer County, Texas, do here-
    by certify that the above and foregoing is a true and
    OOrreOt copy Of the original ordor of Hon. W. B.
    Browdor, Judge of the Ninth Judicial District of Texas,
    setting the salary of Vi. PO Harms, County 'Auditorof
    Waller County, Tolcas,as the same appears of reaord In
    my office in Volume J, at Pago 104, Civil Minutes of
    said Distriot Court0
     Given under my hand and seal of said Court, at offioe
     In Hempstead, Texas, this 28th day of July, A.D. 1941s
                          A. F. Footer, Clork Distriot
                          Court, Wallcr County, Texas."
          Wailer County has a population of 10,280 inhabitants
according to the 1940 Federal consua and a tax valuation of
$5,961,444000 according to the last approved tax roll0
          Sootion 1 of Sonato Bill ll9, Acts of .tle47th
Legislature, Roguaar Sossion, 1941, is applioable to any
county having a population of 35,000 inhabitants or more*
according to the laet preceding >'8d8ralconsus, or having
a tax valuation of $15,000,000,or over',aocording to the la3t
approvod tax roll. Nailer County does not lava the popula-
tion or tax valuation as mentioned in Section 1 of Senate
Bill No0 119, supra, therefore, this seotion is not aPPli-
cable to Wailer County0
-.




     Honorable W. P* Herms, Jr. - Page 4


               Sootion 2 of Sonata Bill NO. 119, supra, reads
     as roncvis:                                            7
         “Section 2.  That Artiola 1646, of the Revised
         Civil Statutes of Texas, 1925, as amended by
         Acts 1929, 41st Legislature, page 687, ohaptor
         308, Section 1, bo, and the sama ia hereby amended
         so as to horeaftor road as follows:
                  'Article 1646.
               'When the Commissioners' Court of a
         oounty  not mt?ntionodand onumoratod in the
         preooding Article shall dotormlne that an
         Auditor is a public nooonsity in the dis-
         patch of tho county business, and shall
         enter an order upon tho minutes of said Court
         fully setting out the roanon for and nocos-
         sity of an Auditor, and shnll cause such
         oraor to be cortifiaa to tho Distriot 3udge.
         or Distriot Judges having jurisdiction in
         the county, oaid Judge or Judges shall, if
         said reason ,be considoroU good and ouffioiont,
         appoint a CoilntgAuditor as provided in the
         precading Article, who shnll qualify and per-
         form all the duties required of County dud-
         itors by tho laws of this Stato, and who
         shall receive as oo,npenaetionfor his services
         as County Auditor an annual salary of not more
         than the annual total oomponsation and/or
         salary allowed or paid tho Ascessor and Col-
         lector of Taxes in his co'unty,and not less
         than the annual salary allowed ouch County
         Auditor undor the Gonoral Laruprovided in
         Artiolo 1645, Revised Civil Statutos, as said
         Article existed on Janunry 1, 1940, such salary
         of the county Auditor to bo detornined and fixed
         b;rtha District Judge or District Judges having
         jurisdiotion in the oounty, a majority thereof
         ruling, said annual salary to be paid monthly
         out of the general fund of the county. The
         action of said Distriot Judge or District Judges
Honorable IV.P. Herms, Jr. -   Page 5


     in determining and fixing the oalsry of           ,
     the County Auditor shall be medo by order
     and recorded in the minutos of tha DistriOt
     Court of the County, and the Clark theroof
    shall certify tho samo for obocrvonoo to the
    COIXzkmiOaCr3'Court which shall cause the
    same to be rocordod in its mlnutos; aftor the
    salary of the County Auditor hoc boon fixed
    by the District niaee or District JUdSOS, no
    chang in such salary shall thcrcaftor be-
    Coma effective until the boginning of ths
    next ensuing *fisoolyear of the county; pro-
    vided, however, any incroaso in the salary
    of any such County Auditor, over and above
    the annual salary allowed nuoh County Audi-
    tor under the general law provided in L-ti-
    olo 1645, as said ArtiOlo existed on January
    1, 1940, shell only bo allo.vedor parmittod
    with the express oonsont and approval of the
    Commissioners* Court of the oounty whose
    County Auditor is nrfectod or may be effected
    by the provisions of this Act; auoh consent
    and approval of suoh Co?;;niscionars*Court
    shall be mcddoby ardor of such Court and rooord-
    cd in tho minutos of the CoLmisaionors' Court
    of such County. Providod, said Dfstriot Judge
    or District Judges shall have tho poJ:orto dis-
    continue the sorvlces of a County duditor as
    provided for in this Artiolo at any time aftor
    the ox~iration of one (1) year from tho appoint-
    ment, when it is oloarly shovtnthat such dudi-
    tor is not a public necessity, and his services
    are not commensurate with his salary.'"
          The above mentionod dot provides in offeot that the
maximum onlery of the county auditor shall not be more thon
the annual total compensation and/or salary allaNed or paid
the assoscor and colleotor of taxos in his Oounty and further
provides that the minimum shall not be less than the annual
salary alloivcdsuch county auditor under the general law pro-
VI&Q& in ArtiOle 1645, Revised Civil Statutes, as said Article
existed on January 1, 1949~. Apparently the salary of tha
Honorable W .P. Harms, Jr. - Page 6


county auditor was $1500000 per yoer until raisod by thi
 District judge and approved by tho Commi5sionors~ Court in
complinnoe with Sonato Bill No. ll.9,suprao Whothor this
was the oorrect salary for the county auditor, is a
quostion not before US. However, in this connection wo
call your attention to Opinion No. O-826, a copy cf whioh
is enclosed for your information0
          In answer to your inquiry, you are respeotrully
advised that it is the opinion of this dopartmant that when
a county auditor is appointod or tho prosont auditor roap-
pointed the Distriot Judge oan sot the salary at,$1800000
for the ensuing year without another approving ordor of the
Commissioners1 Court. Unless the salary of the county
auditor is incroasod beyond the sum of $1800.00 it will not
be necessary to obtain the express oonsent and approval of
the Commissioners1 Court*
          Trusting that the foregoing fully answers your in-
quiry, we are

                                        Yours very truly
                                   ATTORIEYGEXEMLOFTFXAS

                                   By   (8)   aradi    William3
                                                      Assistant
AW:FS



APPFtOVlCIl
         NOV, 4, 1941                   APPFiOlT!D
(8) GroverSellers                       Opinion Committee
First Assistant Attorney General        By B.W.B. Ohairman
