                                    June 13.   1939


                                :
Hon. John W. Moore                       Opinion      No. O-904
County Attorney
Jack County                             Re:     Would a special audj,.or be compen-
Jacksboro;  Texas                               sated by ‘a &o&&t     enter,ed into by
                                               ‘the ‘commissioners.’   court payable
                                                monthlj oi 2for the term of the con-
                                                tract ?. What a’uthority does a special
Dear   Sir:                                     auditor have 1’.

            ‘Your request     for’an opinion~on th.e questions          as are herein
                                                            ..
stated has been ~received     by this office.

              ,Yourletter rea’ds in part as follQ.ws:

              .u1. Does the Commissioners        Court ‘of a county of
       less than 25.000 poRulation aTcording to the last Federal
       census have the authority to employ a ,specjal auditor for
       the purposes   specified in’Arti&s      1645, 1646 and 1646,a With-
       out the approval and permission      of the District   Judge, and
       could said employment be for a peri~od of time rather than
       a contract for a ‘specific ,audit~‘of one or all departments    ?
                            ,,

               ‘2. If your answer and oRin~on to the above is in the
       a,ffirmative.  would ‘such special auditor be compensated   by
       a contract entered into by Commissioners      Court,payable
       monthly or for the’terin of the &&tract,    and

                 “3. What authority would be conferred            on a special
       auditor     employed in this manner 1”

              Article   1641, Revised     Civil    Statutes,   reads   as.follows:

              ‘Any commissioners      ‘court, +&en in its’ judgment an
       imperative    public necessity exists’ therefor,   shall have au-
       thQrity to emplok a disinterested,     competent and expert pub-
       lic accountant to’audit ai1 or’any part of’the books, ‘records,
       .or accounts of the county; or of any district,    county or pre-
       cinct officers,   agents or employees,    including auditors of
       the counties, and all governmental      units of the county, hos-
Han,   John W. Moore.    June 13. 1939, Page       2                                 . . .




       pitals, farms, and other institutions of the county kept
       and maintained at public expense, as well as for all mat-
       ters 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 misconduct,
       willful omission or negligence        in r~ecords and reports,     mis-
       application,   conversion    or retention of public funds, failure
       in keeping ac~counts, making reports and accounting for pub-
       lic funds by any officer,     agent or employee of the district,
       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 en-
       able it to determine     and fix proper appropriation        and ex-
       penditure of public moneys, and to ascertain            and fix a just
       and proper tax levy. ~The said res.olution may be presented
       in writing at any regular      or called session of the commis-
       sioners court, but shall lies over to the next regular          term of
       aaid court, and shall be published in one issue of a newspaper
       of general circulation     published in the county; provided if
       there be no such newspaper         published in the county, then no-
       tice thereof shall be posted in three public places in said
       county, one of which shall be at the court house door, for at
       least ten days prior to tts adoption.         At such next regular
       term s,aid 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 commis-
       sioners court for the audit provided her.ein shall be made in
       accordance    with the statutes applicable       to the letting of con-
       tracts by said court, paym~ent 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 dis-
       trict, county and precinct finances and accounts thereof shall
       be held subordinate      to the powers given herein to the commis-
        sioners’ court;-

              Article   1646a, Revised     Civil   Statutes,   reads   as follows:

               ‘The commissioners’   court of any county under twenty-
        five thousand population according  to the la& United States
        census may make an arrangement      or agreement  with one or
        mole other counties whereby all counties, parties to the ar-
        rangement   or agreement,  may jointly employ and compensate
- -- - .Hon. John W. Moore,   June 1~3, 1939, Page     3




              a special auditor or au.ditors for the purposes  specifie.d
              in Articles  1645 .and 1646; The county commissioners”
              Court of every co,unty 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 arrange-
             ‘ments can be mad~e~with other counties or not; ,provided
           ‘. the district judge or grand jury, may order. said audit if
              either so desires.”

                  It will be necessary   to review the- history of Article    1641 and
     Article  1646a to arrive at a clear understanding     of these articles.    By
     Chapter :80, Acts. of the RegularSession-of     the ~38th,‘Legislature,  Articles
     1459a and 1459b were added to the Revised Civil Statutes of 1911:. These
     articles were brought forward     in the Revis,ed Civil Statutes of 1925 as
                                   :.                        :
     Article  1641.

                      At Chapter 67; Acts of .the RegularSession       of.the 39th Legis-
     lature’;‘Article    1459~ was added tomthe Revised     Civil   Statutes’of ~1911..
     This article reads as follows: ’         ‘~      ;

                    ‘The commis.sioners’    court of any county under twenty-
            five thousand ,population,‘accotding    to the’ last United States
            census may make an a,rrangement ‘or, agreementwithcuie           or
            more other. counties whe.reby’aIl    counties, parties to’the ar-.
            .rangement or agreement      may jointly’ employ and %zompenaate
            a special ~auditor ‘or auditors for the, purpose specified’in
            Articles   1459a and 1459b.” The county commissioners’         court
            of every county effected by this~ article may have an audit
            made of all of the books~ofthe,‘county~or’    any of them at any
            time they,may des,ire,, whether such arrangement         can be made
            with other counties or not; provided the district judge of grand
            jury may orde,r said audits if either ~so.desires.”


                  Thisarticle     has been brought forward       as Article .1646a, Re-
     vised Civil Statutesi     This article now provides      that ” . . . may jointly em-
     ploy and compensate      a special auditor or auditors for the purpose specified
     in Articles  1645 and 16.46.” This is, no doubt, an erroneous            reference    as
     to article numbers,    for in the original article     1459~ of the Revised Civil
     Statutes of 1911, it was provided      that ” . . , may jointly employ and com-
     pensate a special,auditor     .or auditors for the purposes      specified in Articles
     1459a and 1459b, “which articles        compose the present article 1641. This
     being true, therefore    Article   1646a of our present statutes should provide
     that the commissioners’       court “ ... . may jointly employ and compensate           a
     special auditor or aud,itors for the purposes~;specified        in’Article     1641.”
                                                                                                 -

Hat.    John W. Moore,     June 13, 1939, Page    4                                          _ .. .




             It can be seen that Articles  1641 and 1646a, supra, deal with the
right of the commissioners’    court to provide for and .audit by an accountant
or a special auditor.

             Judge Jackson of the Amarillo  Court of Civil Appeals in the case
of Cochran County vs. West Audit Company,, 10 SW 2nd 229, expressed        the
opinion that Article 1646a must be construed as a liberalization  statute.    The
court   says:


                ‘Under Article  1646a, we are inclined to the view that                  .
        the commissioners’     court of Cochran County would be au-
        thorized to employ an auditor without a rigid compliance    with
        Article   1641.”

              In opinion No. O-96, written by Hon. Lloyd Armstrong,           Assistant
Attorney General,     addressed   to W. B. Lane, County Auditor,      Carrizo   Springs,
Texas, this department      held that a commissioners’     court o,f a county of less
than twenty-five   thousand population, according to the last United States Fed-
eral census, has the authority to employ special auditor or auditors without
obtaining the approval or permission       of the district judge.

              In view of the foregaing  authorities,  you are respectfully    advised
that it is the opinion of this department that the commissioners’       court of a
county of less than twenty-five    thousand population, according    to the last
United States Federal     Census, has the authority to employ a special auditor
or auditors without obtaining the approval or permission       of the district judge.
The contract should be for a sp,ecific audit of one or all the matters       as set
forth in Article   1641, supra, rather than a contract of employment       for a
period of time.    The special auditor would have such authority as would be
conferred   by the contract between ,the commissioners’      court and such auditor.
The special auditor should be compensated        by contract entered into by the
commissioners’      court payable for the term of the contract.

                Trusting   that the foregoing   answers     your     inquiry,    we remain

                                                         Very   truly   yours


                                         ATTORNEYGENERALOF                       TEXAS


                                         BY        /s/     Ardell     Williams
AW :AW :da                                                          Assistant
APPROVED:
/s/ Gerald      C. Mann
ATTORNEY        GENERAL       OF TEXAS                      APPROVED    OPINION COM-
                                                            MITTEE   BY RWF, CHAIRMAN
