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MARKWHITE Attorney General

70, c4mm,ca. sune zoo mha.TX. 75202 214,742-8@44 

# The Attorney General of Texas September 27, 1979

HonorableWarren G. Harding State Treasurer P. 0. Box 12608,Capitol Station Austin, Texas 787R OpinionNo.m-99 Re: Whether the office of county treasurer canbe abolished. Dear Mr. Harding: You request an opinion on the eotistitutionality of e PMposedmerger 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 HouseBill 396this 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 andcounty 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 bygeneral law. Acts l979,66th Leg., ch. 130,at 25L If such proposition ‘pames, the treasurer’s office in Tarrant County would cease togexist. 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 bythe qualified voters of each county in this State, of a County Treasurer and a County Surveyor, who shall have an office at the CountySeat, and holdtheir office for four years, and

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HonorableWarrenG. Harding - page Two (m-5 91

until their successors are qualified; and shall have such compensation as may be provided bylaw. Constitutional offices may not be abolished without constitutional authorization. See Cowell v. Ayers, 220SW. 764 (Tex. 1920). It k argued that article llI, section 64 of ~constitution permits the proposedconsolidation. It provides infullr

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. Anysuch 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 andconditions 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 bythk 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 prohlMtlonsof the constitution. Countygovernments are not specifically includedin subsection (a) as they are under (b). SubeecrM (a) permits consolidation in political subdivisions comprklng a county. Subsectionw permits oertain contracts among political subdivisions comprklng a county and amongcamty governments. Thus we believe section 64 draws e distinction between
“countg govssnments

” and “political subdlvkions comprising a county.” -Thelatter does not includetLe former. Webelleve a political subdivision comprking a county k a special pistrict w&b k geographically ooterminous with county boundaries but which does not Itself ConstUwtethe’ county as a governmental entity. See, e.g., Ten. Const. art. Ix, S4 (county-widehospital districts). s Attorney General OpinionV-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 Suggeststhat such fundamental changes in county government were contemplated‘by the doptioo ofsaetion 64.

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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 JOHN W.PAINTER,JR. First Assistant Attorney General TEDL. HARTLEY Executive Assiitant Attorney General Preparedby David B. Brooks Assistant Attorney General APPROVED: OPINION

COMMITTEE ‘

. C. Robert Heath, Chairman David B. Brooks SusanGarrison Rick Gilpin WilliamG Reid BruceYoungblood

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