Untitled Texas Attorney General Opinion ( 1948 )

Hon. R. Y. King Opinion Ho, V-545
county Attorney
Donley County Re: Abolishment of office of
Clarendon, Texas County Superintendent in
Donley County.
Dear Sir:
We refer to your letter concerning the aboliah-
ment of the office of County School Superintendent of
Donley County. You advise that about ten or twelve
gears ago the scholastic population of Donleg County was
2,896; that under Article 2688, V. C. S., as amended by
Acts 1932, 42nd Legislature, 3rd C. S., Chapter 21, then
in force, the County voted to create the office of Coun-
ty Schdol Superintendent, and that since that time there
hats been elected every four years a County Superinten-
dent. That at present the population of Donley County
is 1700, and the people are now anxious to abolish the
office of County School Superintendent. You desire to
know whether arid office may now be abolished.
In Opinion Ro. O-3839, wherein was aubmltted
the question whether the office of County Superintendent
in counties of nope than 3,000 scholastic population may
be abolished this De artment advised that since under
the statute [Art. 2688 as amended by Acts 1932 above
referred to) the Legiaiature has failed to devise any
method by which either the people OF the Commissioners’
Court may abolish #hat office, and there being no con-
stitutional delegation of such authority, it follows
that neither the qualified voters nor the Commiaalon-
era* Courts have the power to abolish OP discontinue
that 4pfice once St has been legally established. See
legislative history of Article 2688, as amended, and
cases in a\ port of this holding cited in attached Opin-
ion No. O-3 f;39.
Since, as reported, there were only 2,890
(less than 3,000) In Donley County when the County vot-
ed for the offire of County Superintendent, said office
was created by an election held in accordance with that
part of Article 2688, as amended by Acts 1932, which
Hon. R. Y. King, page 2 (V-545)
”
* . . In countlea heving leas than
three thousand (3,000) scholastic popula-
tion whenever more then . . . twenty-five
per cent (25%) of the qualified voters of
said county aa shown by the vote for Gov-
ernor at the preceding General Election
shall petition th4 Commissioners’ Court
thereof, said Court shall order an dlec-
tlon for said county to determine wheth-
er OF not the office of County Superinten-
dent shell be created in said County; and,
if a majority of . . . voters . . . shall
vote for the creation of the office of
County Superintendent . . . the Commiaaion-
era’ Court . . . ah411 create the office of
County Superintendent, and name a County
Superintendsnt who shall qualify under this
Chapter +nd hold such office until the next
General Election . . .”
However, Articla 2688, aa amended by Acts 1932,
made no provisions whatsoever authorizing the abolishment
OF discontinuance of the office of County Superintendent
which was created in a county of leas than 3,000 by an
election held under that part of the Act quoted above.
Unless Article 2688, as amended by Acts 1945, 49th J&g-
ialature, R. S., Chap. 208, provides for the aboliah-
wnt of said office, it would follow that neither the
qualified voters nor the CommissIonera Court would have
the necessary authorit to exercise the power of abollah-
ment . Opinion No. O-335 39.
Article 2688, aa amended by Acts 1945, 49th
Legislature, contains this additional provision which
does not aDpear in the statute as amended in 1932:
n
. . . In all counties now OP here-
after having the office of County Super-
intendent where the scholastic population
according to the last scholastic census
is leas than three thou and ( 000) but
more than two thouaend 92,000 ? the office
of County Supepintendont shall continue
unless agd u2lltll a rjority of the quali-
fied taxpaylng voters of said county, vot-
ing at an election hold to determine wheth-
er said office ahall,.bs abolished, shall
Hon. R. Y. King, page 3 (v-545)
vote to abolish said office, which
election shall be ordered by the Com-
mlaaionera’ Court upon petition tffere-
for as hereinafter apetifled. a .
Under this quoted provision, all counties haQ-
lng the office of County Superintendent (whether said
office wao created by virtue of the fact that the coun-
ty contained 3,000 OF more scholastics and In accordance
with the provisions set out in the first sentence of Art-
icle 2688, as amended, OP whether it, having less then
3,000 scholastics, was created b anelection held un-
der that provision of Article 265 8, above quoted) where
the acholaatiti population la leas than 3,000 but more
than 2,000 hea been granted the express power to abolish
by an election the office of County Superintendent. Un-
til such office la aboliahed in the menner set out there-
in it shall oontinue to exist. Prior to this amendment
in 1945, the office of County Superintendent existing by
virtue of a county having over 3,000 scholastics was ter-
minated in a county when the scholastic population.of
such county fell below 3,000. See Opinion O-1254 for
relevant dlaeuaalon on this matter.
Donley County, however, does not fall,withln
this provision of Article 2688, aa~amended 1945, last
above quoted, because, as reported, its present acholaa-
tic population is about 1700, leas then 2,000. Accord-
ingly, It is our opinion, and for the reasons set out in
Opinion O-3839, that there exists no present authority
In the qualified voters OF the Commissioners’ Court of
Donley County to abolish the office of County Superin-
tendent existing in said county,
The general rule, supported by the weight of
authority, is that where a county is empowered by the
Legislature to create an office, It may, If unreatrict-
ed, abolish it. Ford Q. Board of State Herbor Comlra.
(Cal. Sup. 1889) 22 P. 278; Hartfie d County (W. Va.
1919 92 S.W. 245; Rivers v. Harley, t Ga. Sup, 1945) 33
S.W. t 26) 310; and annotation 4 A.L.R. 224.
In this case, however, the legislative history
of the Act calls for an exception to this rule. The leg-
islative intent is of compelling importance Inasmuch as
the office is a creature of the Legislature. At one
tire the counties were express1 authorized to abolish
the office in queatien. Acts 1g 89, 21at Leg., R.S., HeBe
452, p, 58; Acts 1905, 29th Leg., R.S., S.B. 218, P. 273;
.
Hon. R. Y. King, page 4 (V-545)
Stanfield Q, State, 83 Tex. 317, 18 S.W. 577. However,
these Acts were amended and the power to abolish the of;
flee was omitted, and thus withdrawn. We construe that
aotion to mean that the Legislatureintended that the
county no longer has such powel?.
SUMMARY
Under the facts aubacltted,the office
or County Superintendentexlatlng as stated
in Donloy County may not be abolished OP
diacontlnued, thora bslng no pro84nt atat-
utory authorizationfor same. ArtAble 2688,
aa amended by Acts 1945, 49th Legislature,
R.S., Chap. 208; Attorney General Opinion
No. o-3839.
Yours very truly,
ATTORREX GEBERAL OF TEXAS
CEO:,mIi Cheater E, Olllaon
Encls. Aosistant
APPROVED:
ATTORSIE GERBRAL