.           -




        Honorable O.C. Fisher
        District Attorney Dlstriat No. 51                        -
        s8n Angelo, Texas
        bar         Slrr                         oplniorlNo. O-4988
                                                 Re: vypk     auditor under Artiole 1646b.
                                                                appointed by District
                                                      J;&e'u&    request of Gkand Jury ma:
                                                     makeaudit ofcounty~a affaIrsand
                                                      related matters.
                    Y&r z&elit ‘ror inion ha8 been received and wreStally
        .oon8Memdby this depaH+ent. T!i
                                      e quote from your request hs follower

        *                  'I 8m requesting an op*ou     in referenoe to   .'.
                    the following 8ituatlona
        ;-                 'h Sarah, 1941 in pursuanoe of Artlale l@&a
                    of     Revised Civil Sktute~.of %caa a grand jury
                         tk8
    I               0r m.on county pcrs6eda resolution o&rlng 8nd         .
                    dlhctlng th&t'an audit be made of t&e county fln&e~     ,.:'
                    of IMon Oounty. Tbe'last paragreph of said resolution
                    *au as follousl
                              "%ierefon    in accordmoe with thl8 re-
                           port, request 18 made and it 1s here ordered
        .       .          that nuab audit be ma&e by some CexWfled Pub&
                           Aacountaut to be named by your Honor, duly
                           quallfled 40 make suab audit.'
                             "The M&riot Judge iorthwltb appointed Jake Freeze,
                    a certlfled public accountant of San Angelo, to make the
                    audit. Hr. Freeze however, poetponed the uudertakins
                    because he nas una610 to seoure e aatisiectory 8greement
                     with the Comml8alonere'Court In reference to the pay that
                     he would eventually receive for hla efforta. I (UDnow
                    requested tO’8eCUre   an opinion from your Department a8
                     to whether Hr. Freeze would be authorized to proceed at
                     thie tlme In pursuance oi said a&ion of the &raid jWy
                     and or the Metriot Jud@ and make the audit. I under-
                     8taTId that private altlzens of Irlon County have arranged
                     to pay him, and have thereby eliminated the obstaale
                    'whichprevented him from prooeeding orWnal4.                     1
                            "This would seea to involve a construotlon of the
                     above quoted.artlcleand pertalne to the QUkstiOn  OfIthe
                     elapse of time since the aotion of the gMurd jurS.
                     ilnd no decleiona by the courta that throw ang light on
                     H-usewh*oat
 Honorable O.C. Fisher, Page 2                             o-4988

               *                               II
                   .   .   .   .   .   .   .



              fiion County, Texas, has a population of less than 25,000
  Inhabitantsticcordingto the last pmcedipg Federal Census of 1940.
               Article 16&a, Vernon's Annotated Texas Clvll Statutes, prc-
  vldee as follous:
               "County audltora. The Cormnlsslonere~Court of
       any coun%y under twenty-fivethousand PoIn&xtlon
                                             _ -        aocor+
       G   to t& last United-Statesaeneua niaymake an mange-
       ment or agmement with one or more other aountle8 whereby
       all aountlea, parties to the arrangement, may jointly
       employ and ovnsate    a epeclal autitor or audltors for the
       purpose8 speciiled In Articles 1645 and 1646. The county
       commlealonerslcourt of every oounty afrected by thle
       article may have an audit made of all the books of the
       county, or any of them, at any time Way deelre whether
       suab amw&zement8 cm? be made with other counties or not;



               Construing the ebove quoted'atatutewe held In opinion No.
  0-II37 of tble department that such statute authorized an audit of oounty
  effaira and finsnoes In a county under 25,COC populetion upon an order of
.I'
  district judge or @and .Wy regardless OS whether or not such audit was
  dealred by tbe 6ou&aeioners1 court, A copy of thrs oph&on 1s enclosed
  herewlthror yoke,lnfonnation;
               The puree strings of the cowl;y zwe held by the conmhsloner:
  court and they ordinarilyrtouldpay for the servloee of a special auditor
  appointed under,Article 16&, supra. Ar&tIcle1641, V.A.C.S., also pro-
  vides that the c;:m&Motiers' oourt may employ a special auditor and sets
  out a method of contractingwith and compensating such auditor. .Houever,
  there may be r,Imeswhen the couunleeloners~court may not desire the
  appointment of a special auditor because of either the expense lnvolvee
  or other reasons. The Legislaturewisely prov'ldedfor an adult by a
  special auditor upon.the order of either the grand jury or district jo~g:.
  We do not here pars on the querrtlonas to nhether emeclal auditor could;
  recover Judgment agalnet the county for his BerViCbB on a quantum meruit
  basle where he brought suit on L:claim rejected by'the commissioners1
  court for malclngan audit of the fiscal affelre of the gounty ordered by
 'the grand jury OF district &dye under Article '1-a, supra, aa that
  question Is not asked ln your request. Nor do we pass on the legality of
  the special auditor recclvlr~ pay .fromprivate oltizens for his audit
  as that question la not aakod In your request.
               It 18 our opinion that the orders of,the grand jury and
  district judge for the audit and'appointmentof the auditor are.not lnval:
  for lapse of time assuming that such orders have not beet]revoke5 and arc'
  still outsta:ld!ing.         as u practical matter, the special auditor
                      IICWOVCI',
  could become fortlfled in hireposItion if he could seoure a new and fresh
  order from tnc district judge calling for the audit.
.   -

Honczable O.C. Pieher, Page 3                            o-4988


            Trusting   that this matlafactorllyanmrem


                                    Very truly yours
                                    ATWHWEX QBNBRAL OF




-        JAN 9, 1945
8/ Qerald c. Nann
AlTOHNW~OFTEXAS

+pprovedOpit+onCaaaitteegt      sAWCh8irman




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