Untitled Texas Attorney General Opinion ( 1979 )

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The Attorney General of Texas
September 27, 1979
MARK WHITE
Attorney General
Honorable Warren G. Harding Opinion No. m-99
State Treasurer
P. 0. Box 12608, Capitol Station Re: Whether the office of county
Austin, Texas 787R treasurer can be abolished.
70,c4mm,ca.
sunezoo Dear Mr. Harding:
mha.TX.
75202
214,742-8@44
You request an opinion on the eotistitutionality of e PMposed merger
of the Tarrant County treasurer’s office with the county auditor’s office
which would thereby result in the abolition of the treasurer’s office. The
legislature pamed House Bill 396 this year which provides the followingz
Se&ion L The commissioners court of Tarrant
County shall call an election to be held on
November 6, 1979, at which the qualified voters of
the county shall be permitted to vote for or against
the proposition: ‘Consolidation of the offices of
county auditor and county treasurer in this county.’
Sec. 2 If a majority of the qualified voters voting
on the question vote in favor of the proposition, on
the 30th day after the date of the electian the office
of county treasurer ceases to exist in Tarrant County
and all the powers, duties, snd functions of the office
are transferred to the county auditor. The
appointment and compensation of the county auditor
shall continue to be governed by general law.
Acts l979,66th Leg., ch. 130, at 25L
If such proposition ‘pames, the treasurer’s office in Tarrant County
would cease tog exist. Article XVI, section 44 of the Texas Constitution
provides for a county treasurerr
Sec. 44. The Legislature shall prescribe the duties
and provide for the election by the qualified voters of
each county in this State, of a County Treasurer and
a County Surveyor, who shall have an office at the
County Seat, and hold their office for four years, and
P. 186
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Honorable Warren G. Harding - page Two (m-5 9 1
until their successors are qualified; and shall have such compensation as may
be provided by law.
Constitutional offices may not be abolished without constitutional authorization.
See Cowell v. Ayers, 220 SW. 764 (Tex. 1920). It k argued that article llI, section 64 of
~constitution permits the proposed consolidation. It provides in fullr
Sec. 64. (a) The Legislature may by special statute provide for
consolidation of governmental offices and functions of government
of any one or moee political subdivisions comprising or located
within any county. Any such statute shall require an election to be
held within the political subdivisions affected thereby with
approval by a majority of the voters in each of these subdivisions,
under such terms and conditions as the Legklature may require.
(b) The county government, or any political subdlvkionfs)
comprising or located therein, may contract one with another for
tbs performance of governmental functions required or authorized
by thk Constitution or the Laws of this State, under such terms end
caiditicns as the Legklature may prescribe. No person acting
maier a contract made pursuant to thk Subsection (b) shall be
deemed to hold mere then one office of honor, trust or profit or
more than one civil office of emolument. The term ‘governmental
fimctions,’ as it relates to counties, includes all duties, activities
eld operations of statewide importance in which the county acts
for the State, as well as of local importance, whether required or
a&ho&&by thk Constitution or the Laws of thk State.
Subsection (3 permits consolidation of offices in “political subdivisions comprking or
located wit& any~oounty.” It k our opinion that county entities are not treated by
subsection (e). Modifications of county governmental functions are specifically addressed
in sub&a&a fb). It provides fqr interlocal contracts and removes constitutional
impediments to officials acting under such eontracts who may otherwise violate the dual
office prohlMtlons of the constitution.
County governments are not specifically included in subsection (a) as they are under
(b). SubeecrM (a) permits consolidation in political subdivisions comprklng a county.
Subsection w permits oertain contracts among political subdivisions comprklng a county
and among camty governments. Thus we believe section 64 draws e distinction between
“countg govssnments” and “political subdlvkions comprising a county.” -The latter does
not include tLe former. We belleve a political subdivision comprking a county k a special
pistrict w&b k geographically ooterminous with county boundaries but which does not
Itself ConstUwte the’county as a governmental entity. See, e.g., Ten. Const. art. Ix, S 4
(county-wide hospital districts). s Attorney General Opinion V-723 &MS). &cordingly,
abolition of * County, treasurer’s office in Tarrant County k nowhere constituticnally
Permksible. There is no ejdence of legislative intent or judi&al construction which
Suggests that such fundamental changes in county government were contemplated‘by the
doptioo of saetion 64.
P. 187
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Honorable Warren G. Herding - Page Three (m-59)
SUMMARY
Article III,section 64 of the Texas Constitution does not authorize
the legklature to abolish the constitutional office of county
treasurer.
eHmi
Attorney General of Texas
JOHNW. PAINTER,JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assiitant Attorney General
Prepared by David B. Brooks
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE ‘.
C. Robert Heath, Chairman
David B. Brooks
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
p. 188