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   lettbr       as follows:

“Can the office    of County Auditor    of’Nacogdodhes   County-be   abolished
by an order of the Commissioners      Court and without     the consent    of
the T&strict    Judge, at the expiration     of the Audltorts   two year term?

“Also;    is It neoessary     that the office      of County Auditor     of Pacog-
doohes‘County,     established      under Art.    1646, Vernon’s Annotated
Statutes,    be re-created     eaohtwo     years by a request    from the’
Commissioners     Cciurt to the Dlstrlot       Judge, or, the office      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
necessity    in the oountgts      business’    for a County AudltorZn

We 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&, Revised       Civil     Statutes,      reads    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,
 according     to the last approved tax roll,         there shall     be-biennially
 appointed     anAuditor     of Accounts    and Finances,     the title     of said
 officer     to be county auditor,      who shall    hold his office      for two (-29
,.s;;~     plldm     aha&l reo&vmaas       ~e*Sa4am
                                                  .+             hlo aervicw       One
                                                                  ^*    .
    Mr.   C. E. Weaver,     May 5,    1939, page 2, O-729


i   Hundred !L’wenty-five    Dollars  ()125)  for each million     dollars,  or
    major portion    thereof   on the assessed   valuation,    the annual salary
    to be computed from the last approved 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,   reads    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   in the dispatch      of the county business,           and
      shall enter an order upon’the        Minutes of said Court fully            setting   out
      the reasons’ and necesslw      of an auditor , and shall        cause said order
    -to be oertlfled      to the District      Judges having jurisdiction          in the
      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               of
      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     is not a public    necessity     and his services       are not
      oommensurate with his salary reoelvedf...”

     We presume     that at the time an auditor       was orlgina’lly   appointed    in
     Hacogdoohes     County, the Commissioners~       Court entered    an order upon
     the minutes of said Court, fully        setting    out the reasons      and
     neoesslty    for an auditor.,   and caused the order t6be         certified    to
     the Distriot     Judge of your oounty and that he cona’idered           the reason8
     stated    in the court’s   order to be good +nd euffioient         and did appoint
     a county auditor      for a term of two      ears,   and that.auoh    appointee
     qualified    as provided   in Article   1.6t 9,, Revised Civil    Statutes,    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       is a public     necessity
     in the dispatch       of the oounty business      and enters       an order upon the
     minutes of the Commissioners t Lourt fully             setting     out the reasons       and
    -necessity    for an auditor,       and’ causes such order to be certified             to
     the District      Judge    qr.~,Judges having jurisdiction         in the county,       and
     the Judge or Judges consider          the reasons     set.forth      in the court order
     to be-good     and suffiolent      and appoint   the county auditor          in conformity
     with Article       1647, and the office      of county auditor         is then created;
.”    _




      Mr. C. E. Weaver,        May 5,    1939, Pa6e 3, O-729


     In such county and the tenure or such office     1s for a period                      of   two
     years.  Inasmuch as Article  1646, supra, provides 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:”

      We think this method of discontinuing        the office   Is exclusive    and
     ‘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                      1646, would
       have to determine       every    two years-that      an auditor      1s a public
     -necessity      in the dispatch      of the county bualness           and enter     an order
       upon the minutes of the Commissioners ’ Court fully                   setting     out the
       reasons    and necessity      for an auditor,-and        cause such order to be
       certified     to the District      Judge having jurisdiction           in the county,
       etc.     It is not necessary       for this official         deter&nation        to be
       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      to the District        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
       by a fact     finding   by such District         Judge after     the expiration        of one
       year when It 1s clearly          shown that such auditor           1s not a public
       necessity     and his services       are not commensurate with his salary                received.

      You are respectfullyadvised       that It is the opinion  of this
      Department that the office     of county auditor  of kaoogdoohes    County
      cannot be abolished     by an order of the Commissioners’   Court.,

      You are further     advised   that the Commissioners1        Court would not have
      to determine every two years than an auditor            is a public      necessity
      in the dispatch     of the county business      and enter an order upon the
      minutes of the Commissioners 1 Court fully          setting    out the reasons
      and necessity    for an auditor,    but that when such offlclal           determlna-
      tlon Is once made and such court order entered              and certified      to the
      District   Judge and he considers       the reasons    stated   In the court
      order sufficient      to authorize   the appointment      of an auditor      in the
      mgy      and evidences    his finding    In an order entered       in the minutes
                                                                                5
                                                                                -   -




Mr. C. E. Weaver,       May 5,      1939, Page 4, O-729


of the District    Court that the office   of county auditor  is created,
and can only be disoontlnued    by a fact finding    by such District
Judge after   the e%pdration of one year when It is clearly     shown that
such auditor    is not a public  necessity   and his services are not
commensurate with his salary received.

Trusting   that   the   foregoing      answers   your   inquiry,    we remain
                                            Very truly      yours

                                      ATTORNEYGERERALOF TEXAS
                                                             . .._
                                      By'. s/-Ardeli‘Wiliisk

                                                   Ardeil    '~illlams
                                                            Assistant

AW: AW/og
APPROVED:
a/ Gerald C. Mann
ATTORNEYGENERALOF TEXAS