Case Information
*1 May 5, 1939 Mr. 'C. E. Weaver
county Auditor
Nacogdoches County
Nacogdoches, Texas
Dear Sir: Opinion No.. O-729
ke: How can the office of county auditor be abolished and re- created?
Your request for an opinion on the above stated question has been received by this office.
We quote from your as follows: lettbr
“Can the office of County Auditor of’Nacogdodhes County-be abolished by an order of the Commissioners Court and without the consent the T&strict Judge, at the expiration of the Audltorts two year term? “Also; is It neoessary of County Auditor of Pacog- under Art. Vernon’s Annotated doohes‘County, established Statutes, be re-created eaohtwo years by a request from the’ Commissioners Cciurt to the Dlstrlot Judge, or, having been on6e established in suoh manner, la the power vested in the District Judge to continue such office and make an appointment, orreappolnt- meht, of a County Auditor, if he deoldes there 1s still (a public in the oountgts business’ for a County AudltorZn are Informed by your-letter and-by the tiomptroiler’s &floe that Nacogdoches County has a population of 30,390 lnhabltants~ aocording to the last Federal oensus and that the last assessed valuation was $11,968,650.00;
Article 16&, in part as follows: “In any county-having a popuiatfon of thirty-five thousand lnhabl- tants or over, according to the preceding Federal Census, or having -a tax~valuatlon of Fifteen Million Do1Iars.(#1~,000,000), or over, there shall be-biennially according tax roll, anAuditor of Accounts and Finances, the title of said to be county auditor, who shall hold his office two (-29 officer ,.s;;~ plldm aha&l reo&vmaas ~e*Sa4am hlo aervicw One .+ ^* *2 Mr. C. E. Weaver, May 5, page 2, O-729 Hundred !L’wenty-five Dollars ()125) for each million dollars, or
i major portion thereof on the assessed valuation, the annual salary
to be computed from the tax roll; said,annual salary from-county funds shall not exceed Three Thousand Six Hundred Dollars ($3,600)....”
The population of Nacogdoches County and the assessed valuation of the nrooertv irvour countv do not come-within the terms of Article 1645, bf~ihe Revi& Civil Statutes, consequently article 1645 is not appli- cable to Nacog‘doches County.
Artiole 1646, Revised ‘Civil Statutes, in part as fallows: “When the Co-missioners1 Co& of a County, not mentioned and . . . . -_ enumerated .in the preceding Article shall determine tnat an auditor is a public necessity of the county business, and shall enter an order upon’the Minutes of said Court fully setting out the reasons’ and necesslw , and shall cause said order -to be oertlfled Judges having jurisdiction
oounty;said Judges shall, if such reason be considered good.and au-~ appoint a County Auditor, as provided in the sucoeedlr+g &tiole, who shall qualify and pdrform all the duties required County~Addttors by the Laws of this State; provided, said Judge,&hall have the power to discontinue the offloe of such County Auditor- at any time after the axpirat$on of-tine year when its is plearly shown thaC suoh auditor are not oommensurate with his salary reoelvedf...” presume that at the time an auditor was orlgina’lly in
Hacogdoohes County, the Commissioners~ Court entered an order upon the minutes of said Court, out the reasons and neoesslty for an auditor., and caused the order t6be to the Distriot Judge of your oounty and that he cona’idered the reason8 in the court’s order to be good +nd euffioient and did appoint ears, and that.auoh appointee a county auditor for a term of two qualified as provided in Article 1.6 9,, t 1925, by taking the oath of offioe and makingthe bond provided for 1” that article.
In view of Article. 1646, supra, you are advised that when the Commissioners~ Court by virtue of authority vested in it by suoh artlole officially determines that an auditor of the oounty business and enters an order upon the t Lourt out the reasons and
minutes of the Commissioners and’ causes such order to be certified to the District Judge qr.~,Judges having
the Judge or Judges consider set.forth in the court order to be-good and suffiolent and appoint the county auditor in conformity with Article 1647, and the office is then created; *3 .” 1939, Pa6e In such county and the tenure or such office 1s for a period of two Inasmuch as Article 1646, supra, provides
years. the method or manner In which such office may be discontinued and states: “Provided, said Judge shall have the power to discontinue the office of such County Auditor at any time after the expiration of one year when it la clearly shown that such auditor Is not a public necessity and his services are not commensurate with his salary received:” think this method of discontinuing Is exclusive ‘that the office -may not be discontinued in any other way axoept by act of the Legislature in changing the law or repealing the law because where a method of discontinuing an office Is provided, it is the general rule of construction that the method so provided 1s exclusive, and excludes discontinuance of the office by any other method or procedure.
You also ask if the Commissioners ’ Court, under Article would have to determine two years-that an auditor 1s a public every of the county bualness and enter an order upon the minutes of the Commissioners ’ Court out the reasons and necessity for an auditor,-and cause such order to be to the District Judge having It is not necessary this official deter&nation to be etc. made and a *judgment entered and certlfled as above provided for everi two year term, but that when such official determination la once made.and‘suoh court order entered and certified Judge and he considers the reasons stated in the court order sufficient -to authorize the appointment of an auditor in the county and evidences his finding in an order entered in the minutes ,of the District Court, that the office of bounty auditor is Created, can only.be discontinued finding by such District the expiration of one year when It 1s clearly shown that such auditor 1s not a public are not commensurate with his salary is the opinion of this You are respectfullyadvised that It Department of kaoogdoohes County cannot be abolished by an order of the Commissioners’ Court., You are further advised that the Commissioners1 Court would not have than an auditor to determine every two years of the county business and enter an order upon the
minutes of the Commissioners 1 Court out the reasons and necessity but that when such offlclal determlna- tlon Is once made and such court order entered and certified District Judge and he considers In the court order sufficient to authorize the appointment
mgy and evidences his In an order entered in the minutes
[5] - - Page of the District Court that the office is created, and can only be disoontlnued by such District the e%pdration of one year when It is clearly shown that such auditor are not commensurate with his salary
Trusting that the foregoing answers your inquiry, we remain
Very truly yours ATTORNEY GERERAL OF TEXAS . .._ By'. s/-Ardeli‘Wiliisk Ardeil '~illlams Assistant AW: AW/og
APPROVED:
a/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS