                       OIRNEYGENERAL
                     OFTEXAS
                    AUR1IN   11.   TlzxAs
                                    This Opinion
                               Overrules Opinion O-96
                               insofar as it conflicts
                               vith this opinion.

Honorable R. A. McElrath
County Auditor
Cooke County
Gainesville, Texas
Dear Sir:                    Opinion Ro. O-5533
                             Re: Whether certain provisions
                                  of Article 1641, R. C. S.,
                                  1925, are mandatory upon
                                  the Commissioners1 Court
                                  before entering Into a
                                  valid contract for an out-
                                  side audit, and a related
                                  question.
         After quoting Article 1641, R. C. S., you submit
the following questions in your letter of August 18, 1943,
upon which you desire the opinion of this department:
         "1 . Before entering Into a valid contract
     for an outside audit is it mandatory upon the
     commissioners1 court to have presented to it in
     writing a resolution providing for such audit,
     such resolution to be publicized as setforth
     in the statute, and adopted at the next regular
     term of the Court?
         "2 . In the adoption of any such resolution
     by a majority vote of the four commissioners will
     it be necessary that at least three commissioners
     vote for such adoptlon,,or may It be adopted by
     a vote of two commissioners and the County Judge
     with two Commissioners voting against adoption."
         Artlcics 1641 and,l646a,,R,.C.S. of 1925, respec-
tively, read as follows:
         Article 1641.
         “Any commissioners court, when in its judg-
     ment an imperative public necessity exists there-
     for, shall have authority to employ a disinterested,
Hon. R. A. McElrath, page 2


     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 pre-
     cinct officers, agents or employes, including au-
    ditors of the counties, and all governmental units
    of the county, hospitals, farms, and other instltu-
     tions 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 mls-conduct, willful omission or negligence
     in records and reports, mlsappllcatlon, conversion
    or retention of public funds, failure in keeping
    accounts, making reports and accounting for public
    funds by any officer, agent or employe of the dis-
    trict, county or precinct, including depositories,
    hospitals, and other public institutions 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 appropriation and expendl-
    ture of public moneys, and to ascertain and fix a
     just and proper tax levy. The said resolution 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 newspaRer-of
    general circulation published in the county; pro-
    vided 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 whfch
     shall be at the court house door, for at least ten
    days prior to its adoption. At such next regular
    term said resolution shall be adopted by a majority
    vote of the four commissioners of the court and
    approved by the county judge. Any contract entered
     Into by said commissioners court for the audit pro-
    ‘vided 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 accordance 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 to the powers given herein to the
     commissioners' court. (Acts 1923, p. 170.)"
                                              .-

Hon. J. A. McElrath, page 3


         Article 1646a.
         "The commissioners' court of any county under
     twenty-five thousand population ,accordlngto the
     last United States census may make an arrangement
     or agreement with 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 speci-
     fied in Articles 1645 and 1646. The county commls-
     sioners' court of every county affected by this
     article may have an audit made of all 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."
         Article '2343, R. C. S., 1925, provides:
         "Any three members of the said court, lnclud-
     ing the county judge, shall constitute a quorum
     for the transaction of any business, except that
     of levying a county tax. Id."
         In bringing Article 1646a into the Revised Civil
Statutes, 1925, this article erroneously refers to Article"
1645 and 1646 where in Its original enacted form, it express-
ly referred to."Articles 1459a and l@pb" '(R. C. S., 1911).
In such original~form, this statute was enacted~by the same'
39th Legislature, Reg. Seas., which enacted~Senate.Bill 382,
Chapter 104, authorizing the preparation; printing, sale and
distribution of the R. C. S. of Texas, 1925, with the~ex-
pressed intention that It be added to "Article 1459b", R.
C. S. of 1911, and "be called Article 1459c." Since Articles
1459a and 1459b were brought forward in the 1925 revision
as Article 1641, It Is apparent that the added statute (Art-
icle 1459c) should have been more clearly codified with Art-
icle 1641 and expressly refer therein to said article In
lieu of Articles 1645 and 1646 as It presently reads. The
foregoing error In the 1925 revision was early pointed out
In an opinion of this department written by Honorable Bruce
W. Bryant, First Assistant Attorney General, to the County
Attorney of Walker County, Huntsville, Texas, under date of
October 5, 1931.
Ron. R. A. McElrath, page 4


         Former Opinions of this department as well as
Court decisions therefore construed Article 1641 and
1646a, R. C. S., 1925, together ,inpassing upon questions
similar to those herein presented, relating to a' special
audit.
         In Cochran County v. WestAudIt Company 10 S.
W. (2d) 229, the Court held that under Article d46a
the Commissioners' Court of Cochran County would be &th-
orized to emplo an auditor without a rigid compliance
with Article 16ii
                1, and that this statute, being a special
statute, would control over Article 2368. The last named
article, relating to competitive bidding for contracts,
has since been repealed and reenacted,as Article 2368a,
Vernon's Annotated Civil Statute, wherein it contains a
proviso exempting from.the publication requirements ,of
the statute contracts for personal or for professional
services or for work done by the county and paid for by
the day, as such work progresses.
         We note that in the Cochran County Case,~above
mentioned, the court found that the order of the~Commls-
sioners' Court did In fact lie over untll~after the next
regular term when It was passed, but as to further objec-
tions levelled against the auditing company onfailing to
meet other requirements of Article 1641, supra, as affect-
ing the validity of the contract, no discussion of same ap;~
pears In the opinion. Recovery was permitted quantum meruit
and writ of error refused.
         In a later case, West Audit Company v. Yoakum Coun-
ty, 35 S. W. (2) 404, It appears the company had brought the
action on a contract for an audit made with Yoakum County
and in the alternative, sought relief on an implied contract
based upon quantum merult. We quote from the opinion oftthe
Cottmlsslonof Appeals, Section A, written by Justice Sharp:
        "It is undisputed that the provisions of
    Article 1641 were not complied with in making
    the contract In controversy. -In our opinion
    We&Audit   Company can not recover upon a
    written contract made with Yoakum County to
    audit Its books."
         The Yoakum County Case appears to be the last case
by any Appellate Court in which Article 1641 was considered.
In view of the above quoted language found in that opinion,
Hon. R. A. McElrath, page 5


it is our opinion that your first question and the first of
the two alternative questions embraced in your second ques-
tion should be answered in the affirmative, and they are so
answered.
         Our Opinion Ho. O-96 is hereby overruled, Insofar
as it is in conflict with this opinion.
APPROVED SEP 30, 1943          Yours very truly,
Grover Sellers           ATTORNEY GRNERAL OF TEXAS
FIRST ASSISTANT
ATTORNEY GWERAL

                          Bs     /RI
                                 Km. J. R. King
                                      Assistant




                           APPROVED
                           OPINXON
                         COMMITTRE
