Untitled Texas Attorney General Opinion ( 1948 )

Hon. R. E. Schneider, Jr. Opinion Ho. V-685
Count Attorney
Live i ak County Re: Effective date of a
George West, Texas proposed election to
abolish the office of
County Superintendent
In Live Oak County.
Dear Sir:
We refer to your recent letter from which we
quote, la part:
“Live Oek County Is a county having
more than 2,000 but less ten 3?000 scho-
lastic population, and the County Super-
intendent has recently resigned.
“The statute authorizing and providing
for the office of County Superintendent Is
Artlole 2688 as emended by the Acts of 1945,
end provides in part as follows:
“111 all counties now or hereafter
having the office of county Superintendent,
where the scholastic population according
to the last scholestlc census 1s less than
3,000, but more than 2,000, the office of
County Superintendent shall continue un-
less and until a majority of the quall-
fled property tax paying voters of said
county, voting et an election held to de-
termine whether said office shell be abol-
Ished, shall vote to abolish said office,
which election shall be ordered by the Com-
missioners’ Court upon petition therefor
es hereinafter specified, Provided, how-
ever, that If a majority of said voters
voting et seld election herelnebove pro-
vided for, vote to abolish said office
said election shall not become effective
until the expiration of the term of of-
fice for which the County Supeplntendent
. _
Hon. R. E. Schneider, Jr., psge 2 (V-685)
has been elected or appointed.’
‘The term for which the County Super-
intendent was elected will expire December
31, 1950. The office is now vecant.
“Under the provisions of Article 2355
of the Revised Civil Statutes, the Commis-
sioners’ Court has authority to fill vrcan-
CIES in the office of the County Superin-
tendent, such appointme to hold office
until the next General Election.
“It seems to be the concensu6 of opin-
ion of the County School 3oWd that the of-
fice of County Superintendent Is not neces-
sary lh the o&T, due to the feet that due
to recent consolldatf~ns end annexation pro-
ceedings there ere only two corrrm~nschool
districts in the county, the rest of the dis-
tricts ROWbeing In tvo independent school
districts. The County Board had In mind
the circulation of petitions for the Com-
missloners~ Court to call the election pro-
vided for In Article 2688 in order that
the vote?6 vould have an opportunity to de-
termlne vhether or not the office should
be kbollshed, and the question arose as
to vhen the election would become effec-
tive la the event it carried to abolish the
OfflCd. The question being vhhethep or not
ths election would becoue effective at the
next General Election to be held this OQP-
lng November, or vould the election not be-
come effective until January lst, 1951."
In Opinion V-545, this office 8dvlsed thet by
virtue of the provlsieas of Artlcl 2688, as amended,
(quoted in your letter hereinabove P all counties having
the office of County Superintendent, where the scholes-
tic population is less than 3,000 but more than 2,000,
have been granted the express power to abolish by bn
election the office of County Superintendent. Further,
thet the general rule, supported by the weight of auth-
orlty, Is that where a county 16 empowered by the Leg-
lslrturs to create an office, It may, if unr66trlcted
abolish It; but that the leglalrtlvo history c0nc8ralng
the Texas Act, Article 2688, calls for am exception to
this rule. Opinion O-3839.
Hon. R. E. Schneider, Jr., page 3 (V-685)
Live Cak County, assuming that it has the
scholastic population reported herein, has the express
power to abolish Its office of County Superintendent in
the manner set out In Article 2688, as amended. The
Legislature having specifically provided the statutory
procedure, applicable to Live Oak County, by which the
office of County Superintendent may be abolished, it
follows that said office may not be abolished In any
other manner.
However, Article 2688, as amended, also pro-
vides that if a majority of the qualified voters vote
to abolish said office of Its County Superintendent
"said election shall not become effective until the ex-
piration of the term of office for which the Eounty
Superintendent has been elected or apQointed. (&@a-
sls ours)
Since 1931, the office of County School Super-
intendent has been for e term of four gears. Article
2688, V. C. S. By virtue,of the provisions of Article
2355, hovever, wherever necessity requires the appolnt-
ment of a person to fill a vacancy created In said of-
fice, that offlce is open to election at the next Gen-
eral Election, end the term of the appolntee'wlll ex-
ire on January 1st follow1 ~0``o````4~e````~2~lectlon.
1 ttorney Gen6re1's Opinions
Attorney Generalls“Cpinion lo. 0-1833 further
advises to the effect that the fact that It Is now too
late for e cendidate for nominee for the Democratic Per-
ty to get his name printed upon the Primary Election
ballot, or as for that matter, the failure of the Demo-
cratic Party to select a nominee, will not affect the
right of the people to elect e County Superintendent at
the General Election in Rovember. The voters may vote
their choice by writing the candidate's name in the blank
space provided for that purpose.
!&us, If the Commissioners' Court of Live Oak
County, acting under Article 2355, appoints, prior to
General Election day, a person to fill the vacancy exist-
ing In Its office of County Superintendent, the term of
said appointee qualifying therefor will expire on Janu-
ary 1st following the next General Election, towlt, Jan-
uary 1, 1949; and If prior to General Election date, the
office of County Superintendent Is abolished in accor-
dance with the provisions above quoted of Article 2688,
as amended, then that statute provides in effect that
Eon. B. E. Schneider,Jr., psge 4 (V-685)
.m. . .seid:abolls~ent election vi11 become effective on "the
.~
expiration of the term of office for vhiqh the County
Superintendenthas been . . . eppolnted, tovlt, Jenu-
,C,-_.
_.__...
~'(8.;
i'i eiv J.,1949.
,_.____,.,
"...r..r-..‘.-.
If the Commissioners1Court of Live Oek
County, acting under Article 2355, V. C. S.,
prior to General Election day eppoints e per-
60~ to fill the vacancy existing in the of-
fice of County Superintendent,the term of
Said appointeevi11 expire on January lst,
fo11owing the next Genera1 Election. Attor-
ney General's Opinion6 Ros. O-6923, O-1664,
o-2212.
And if, prior to General Election dey,
the offlse of County SuperintendentIs abol-
l6hed In accordancewith Article 2688, V. C.
S as 6mended, 66id abolition elwtion vi11
biiome effective elt"the lxplrrtien of the
term of office for vhiah the CountynSuper-
intendanthas been . . . appolnt6d.
Your6 very truly,
ATTORRRYGERRRALOF TEXAS
CBO:mw ,,wf-
Cheqter R. 01116On
A66$@t8st
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