Untitled Texas Attorney General Opinion ( 1976 )

April 16, 1976
The Honorable Arthur C. Eads Opinion No. H-EC9
County Attorney
Bell County Re: Payment of supple-
P. 0. BOX 474 mental salary to county
Belton, Texas 76513 auditors pursuant to
article 1672, V.T.C.S.,
in counties having five
or more improvement
districts.
Dear Mr. Eads:
YOU have asked two questions relating to article 1672,
V.T.C.S. The statute reads:
The countv auditor shall receive for
s;ervi~ces-in auditin
.districtz ~p%a%~'``%e
commissioners court may prescribe, which
shall be paid by the county out of the
general fund and repaid to the county by
such districts by warrants drawn upon the
proper funds of such district. In such
counties which have or may have as many
as five such districts, the compensation
auditorfor his services
districtsxarbe not
twelve hundrehdmars
among the districts
in such proportion as the commissioners court
..
may determine. (Emphasis added).
..’
p.3410
The Honorable Arthur C. Eads - page 2 (H-809)
Your questions are:
1. What 'districts' are covered by article
16721
2. Is the county auditor entitled to receive
the minimum [twelve hundred dollars per annum]
specified in Article 1672 if the county auditor
does not actually perform any services for the
districts?
Your first question is answered by article 1667, V.T.C.S.,
reading in pertinent part:
In all counties which have. . .a County
Auditor and containing a population of one
hundred ten thousand (110,000) or more, as
shown by the preceding Federal Census. . .
and in which counties there exists . . .
any improvement, navigation, drainage, or
road or irrigation district, or any other
character of district having for its purpose
the expenditure of public funds for improve-
ment purposes, or for improvements of any
kind whether derived from the issuance of
bonds or through any character of special
assessment, the County Auditor shall
exercise such control over the finances
of said district as hereinafter provided.
Bell County, according to the 1970 Federal Census, con-
tained a population in excess of 110,000. Therefore, all
special districts in Bell County having as their purpose the
expenditure of public funds for public improvements are covered
by article ,1672.
Your second question concerns the compensation to be
' received by the county auditor. It is important to note
that the rendition of services is required by law and is not
dependent on any contract between the auditor and the districts
or between the commissioners court and the districts. The
county auditor is a public officer, and services are to be
performed by him as additional duties of his office imposed
p.3411
,
.
The Honorable Arthur C. Eads - page 3 (H-889)
by law. He is not relieved of the obligation or power to
perform them even though the districts might object or
though other auditors might be employed by the districts.
Skelton v. Cameron & Im rovement Dist.
-- Saii%XXZi95
Attorney General Opinions C-278 (1964), WW-1200
See also American Indemnity Co. v. Red River Nat.
(1961). --
Bank in Clarkesville, 132 S.W.Zd 473, 480 (Tc Civ. App. --
Texar??%a 1939, writ dism'd jdqmt. car.); Attorney General
Opinions C-535. (1965), C-359-(1964), V-859 (1949); Attorney
Letter Advisory No. 63 (1973).
The duties of the county auditor of Bell County, with
respect to such districts are fixed by articles 1668, 1669,
and 1671.
If a county auditor has engaged in official misconduct
or is incompetent to discharge his duty, he may be removed
under the provisions of law. V.T.C.S. art. 1676. But as a
public officer, a county auditor whose statutory duties
include services for asmany as five districts is entitled
to receive at least twelve hundred dollars additional compen-
sation as his official salary. It is not within the discretion
of the commissioners court to reduce that minimum statutory
salary, whether or not the commissioners court believes the
duties have been adequately discharged. Attorney General
Opinions C-531 (1965), V-1522 (1952). In 47 Tex.Jur.Zd,
Public Officers, § 163, at 208 it is said:
The salary or emoluments are incident
to the title to the office and not to
its occupation or the performance of
official duties. In order to recover
the amount, the officer is not required
to show that he has discharged the
duties of the office, nor is he precluded
from recovering by the fact that he has been
wrongfully deprived of the right to perform
the services or that another person has per-
formed them.
p.3412
,
.
The Honorable Arthur C. Eads - page 4 (H-809)
Assuming there are as many as five such districts in
Bell County, we answer your second question in the affirmative.
SUMMARY
Counties subject to the provisions of article
1672, V.T.C.S., and in which there are
as many as five special districts having
as their purpose the expenditure of
public funds for public improvements are
required by the statute to pay at least
$1200 additional compensation annually
to the county auditor for services he is
required by law to render in connection
with such districts. Although a county
auditor who has engaged in official
misconduct or is incompetent to discharge
such duties may be removed, it is not
within the discretion of the commissioners
court to refuse payment of the statutory
minimum to a county auditor in office.
Very truly yours,
JOHN L. HILL
Attorney General of Texas
APPROVED:
.j C. ROBERT
Opinion Committee
p.3413